Chaitu Lal Vs. State of Uttarakhand-20/11/2019

RAPE-The attempt to commit an offence begins when the accused commences to do an act with the necessary intention. In the present case, the accused appellant pounced upon the complainant victim, sat upon her and lifted her petticoat while the complainant victim protested against his advancements and wept.

NONREPORTABLE

SUPREME COURT OF INDIA

Chaitu Lal Vs. State of Uttarakhand

[Criminal Appeal No. 2127 of 2009]

ACTS: Section 354 and Section 511 read with Section 376 IPC

N.V. RAMANA, J.

1. The present criminal appeal arises out of the impugned order dated 27.03.2009 passed by the High Court of Uttrakhand at Nainital in Criminal Appeal no.144 of 2006 whereby the High Court dismissed the appeal of the appellant and confirmed the order dated 08.05.1992, passed by the Sessions Judge, Chamoli in S.T. No. 36 of 1991 convicting the accused for offences under Section 354 and Section 511 read with Section 376 IPC. The accused was sentenced to undergo rigorous imprisonment of one year for commission of offence under Section 354 IPC and he was further sentenced to undergo two years Rigorous Imprisonment and pay a fine of Rs. 200/for commission of offence under Section 511 read with Section 376 IPC.

2. The brief facts according to the prosecution are that the complainant victim is the aunt of the accused-appellant. The accused-appellant had earlier also committed indecent behavior with the complainant victim, which is the subject matter of another criminal proceeding. On 12.01.1991, the accused-appellant after seeing the complainant victim alone took advantage of the same and attempted to molest her. On the same date at around 10:00 P.M while the complainant victim along with her daughters was sleeping in her house, the accused-appellant entered into the house of the victim in a drunken state. While the complainant victim was getting up from her bed, the accused-appellant pounced upon her making her fall into the bed.

The accused-appellant thereafter lifted her petticoat, sat upon her and attempted to commit rape. Upon hearing the noise, the daughter of the complainant victim (P.W.2) got up and beseeched the accused-appellant to let go of her mother. Upon hearing the commotion, certain other villagers interfered, accused-appellant ran away after threatening the complainant victim. Thereafter, the complainant victim narrated the entire incident to her husband, pursuant to which they approached the Court of the CJM to file the complaint on 16.01.1991.

3. The trial court, vide order dated 08.05.1992, convicted the accused-appellant for offence under Section 354, pursuant to which he was directed to undergo one year rigorous imprisonment. He was further convicted for offence under Section 511 read with Section 376 IPC and was directed to undergo rigorous imprisonment for two years and to pay a fine of Rs. 200/. Aggrieved, the accused-appellant approached the High Court in Criminal Appeal No. 144 of 2006. The High Court vide impugned judgment dated 27.03.2009 dismissed the appeal and upheld the order of conviction passed by the trial court. Aggrieved by the aforesaid dismissal, the accused-appellant approached this Court by way of present appeal.

4. The counsel on behalf of the accused appellant submitted that accused appellant has been framed by the complainant victim pursuant to certain existing enmity. Further, it was pleaded that the FIR was registered with a delay of 3 days and the prosecution has failed to explain the same. Lastly, the evidence of the witnesses does not suggest any liability for offence under Section 511 read with Section 376 of IPC.

5. On the contrary, the counsel for the State has supported the concurrent judgments of conviction passed against the accused-appellant.

6. Heard counsel appearing for both parties. In the present case, the statement rendered by the complainant victim (P.W.1) is corroborated by the daughter of the complainant victim (P.W. 2) who is an eyewitness to the said incident, husband of the complainant victim (P.W.3) and independent witness Sohan Lal (P.W.4). The courts below have observed that although these witnesses were subjected to lengthy cross-examination, they have remained persistent in their statements and there was no material contradiction so as to raise any doubt regarding their credibility.

7. The statement of the complainant victim reveals that the accused appellant had attempted to molest her on numerous occasions. In order to attract culpability under Section 354 IPC, the prosecution has to prove that the accused applied criminal force on the victim with the intention of outraging her modesty. In the case at hand, prior to the commission of the offence, the accused appellant had attempted to molest the complainant victim on the same day itself. Later that night, the accused appellant forcibly entered the house of the complainant victim in a drunken state, being aware about the absence of her husband. Thereafter, the accused appellant, exerting criminal force, pounced upon the complainant victim and forcibly lifted her petticoat. Although, the complainant victim pleaded the accused to stop considering the fact that she was his aunt; he responded stating, it does not matter to him. The aforesaid action of the accused appellant is sufficient to prove his culpability.

8. The counsel of the accused appellant has pleaded that the actions of the accused appellant do not constitute the offence under Section 511 read with Section 376, as the accused appellant had not committed any overt act such as; any attempt to undress himself in order to commit the alleged act. This Court in the case of Aman Kumar and Anr. v. State of Haryana, (2004) 4 SCC 379 held that

“11. In order to find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part…”

9. The attempt to commit an offence begins when the accused commences to do an act with the necessary intention. In the present case, the accused appellant pounced upon the complainant victim, sat upon her and lifted her petticoat while the complainant victim protested against his advancements and wept. The evidence of the daughter (P.W.2) also reveals that she pleaded with the accused appellant to spare her mother. In the meantime, hearing such commotion, other villagers intervened and threatened the accused of dire consequences pursuant to which the accused ran away from the scene of occurrence.

Here, the evidence of independent witness Sohan Lal (P.W.4) assumes significance in corroborating the events on the date of occurrence, wherein he has averred that at around 10:00 p.m, he heard noise coming from the house of complainant victim, pursuant to which he saw the accused appellant’s wife holding his neck coming out from the house of the complainant victim. P.W.4 had also overheard the complainant victim complaining that the accused appellant was quarreling with her.

10. Herein, although the complainant victim and her daughter were pleading with the accused to let the complainant victim go, the accused appellant did not show any reluctance that he was going to stop from committing the aforesaid offence. Therefore, had there been no intervention, the accused appellant would have succeeded in executing his criminal design. The conduct of the accused in the present case is indicative of his definite intention to commit the said offence.

11. The counsel on behalf of the accused appellant placed reliance upon the case of Tarkeshwar Sahu v. State of Bihar (Now Jharkhand), (2006) 8 SCC 560 to claim the benefit of acquittal for offence under Section 511 read with Section 376 of IPC. But, on careful perusal of the aforesaid decision in the backdrop of facts and circumstances of the present case, both the cases are distinguishable as in the case cited above, it is clearly noted that the accused failed at the stage of preparation of commission of the offence itself. Whereas, in the present case before us the distinguishing fact is the action of the accused appellant in forcibly entering the house of the complainant victim in a drunken state and using criminal force to lift her petticoat despite her repeated resistance.

12. Further, the plea of the accused appellant regarding the delay in registering the FIR has been duly considered by both the courts below. It has been duly noted that the husband of the complainant victim (P.W.3) was staying in Nandprayag while the incident occurred in the remote village of Salna. Subsequent to the incident, the complainant victim first travelled to meet her husband (P.W.3). After narrating the said incident to him, she further travelled to register a complaint before Chief Judicial Magistrate, Chamoli, which is again far off from the place of occurrence. Considering the aforesaid factual scenario, the delay in registering the FIR does not affect the case of the prosecution adversely.

13. Considering the facts and circumstances, the guilt of the accused appellant has been established beyond doubt. In our opinion, therefore, the courts below have rightly convicted and sentenced the accused. In view of the aforesaid observations, the appeal lacks merit and is accordingly dismissed.

J. (N.V. RAMANA

J. (AJAY RASTOGI)

New Delhi;

November 20, 2019


 

Ravi S/o. Ashok Ghumare Vs. State of Maharashtra – 03/10/2019

SUPREME COURT OF INDIA JUDGMENTS

MurderDeath sentence confirmed-The victim was barely a two-year old baby whom the appellant kidnapped and apparently kept on assaulting over 4-5 hours till she breathed her last. The appellant who had no control over his carnal desires surpassed all natural, social and legal limits just to satiate his sexual hunger. He ruthlessly finished a life which was yet to bloom. The appellant instead of showing fatherly love, affection and protection to the child against the evils of the society, rather made her the victim of lust.

ACT: Sections 302, 363, 376 and 377 of the Indian Penal Code

SUPREME COURT OF INDIA

Ravi S/o. Ashok Ghumare Vs. State of Maharashtra

[Criminal Appeal Nos. 1488-1489 of 2018]

BENCH:

J. ROHINTON FALI NARIMAN

J. SURYA KANT

J R.Subhash Reddy

SURYA KANT, J.

These appeals assail the judgment dated 20th January, 2016 passed by the High Court of Judicature at Bombay, Bench at Aurangabad, confirming the death reference in the Sessions Case No. 127 of 2012 decided by the Additional Sessions Judge, Jalna, in which the appellant having been found guilty of committing offences punishable under Sections 302, 363, 376 and 377 of the Indian Penal Code (for short, “the IPC”), has been awarded the sentence of death under Section 302, IPC along with the sentence of rigorous imprisonment(s) of different durations with fine for the rest of offences. The Trial Court as well as the High Court have concurrently held that the case falls within the exceptional category of ‘rarest of the rare’ cases where all other alternative options but to award death sentence, are foreclosed.

2. The facts leading to the aforestated conclusion are to the following effect:-

3. The informant Iliyas Mohinuddin (P.W.9) had been a fruitseller based in Jalna. On 06.03.2012 at about 5.00 p.m. while he was as usual busy in selling fruits, his wife informed him that their daughter (in short, ‘the victim child’) who was 2 years old, was missing. He along with his relatives started looking for the child. During their search, the informant came to know from Azbar (P.W.2) that the appellant had been spotted drunk and was distributing chocolates to small children in the lane near the Maroti Temple. The appellant was also a resident of the same lane. The informant went to the appellant’s house which was found locked. As the whereabouts of the missing child were still not known, the informant lodged a formal missing report to the police.

He also passed on the information to the police as received from Azbar (P.W.2) regarding the distribution of chocolates amongst small children by the appellant. The police, therefore, came to the appellant’s house which had two doors. One was found locked from outside while the other was locked from inside. Police broke open the door and entered the house along with the informant, his brother and a few other persons. They found the appellant in the house; deceased-victim was lying under the bed in a naked and unconscious condition. Blood was oozing out from her private parts and had multiple injuries on her body. She was covered in a blanket and taken to the hospital where the doctor declared her brought dead. Inquest panchnama was prepared and the body was sent for post mortem.

A panel of doctors, including Dr. B.L. Survase and Dr. Bedarkar (P.W. 7 and P.W.8 respectively) performed the post mortem and found multiple injuries on the person of the victim. They opined that the death was caused due to throttling. The informant – father of the victim lodged the report at 12.30 a.m. on 07.03.2012 on the basis of which Crime No. 56 of 2012 was registered. The appellant was arrested at about 1.00 a.m. on the same day by the Investigating Officer Rajinder Singh Gaur (P.W.12). The clothes worn by the appellant were seized and the seizure panchnama was drawn in the presence of panchnama witnesses – Sheikh Arshad and Sheikh Nayeem.

4. Iliyas (P.W.9), the father of the deceased-victim also produced the clothes worn by her which too were duly seized in the presence of Syed Muzeeb (P.W.1) and Mohd. Akbar Khan. The scene of crime panchnama was drawn and articles found on the spot were also seized. The appellant was referred for medical examination to Ghati Hospital, Aurangabad. The appellant’s blood samples were taken on 11.3.2012 and sent to Mumbai for DNA examination along with the seized muddemal. The blood samples of the appellant were taken again on 13.03.2012 and were sent for the DNA test.

5. On filing of the chargesheet, charges under Sections 363, 376 and 302, IPC were framed to which the appellant did not plead guilty and claimed trial. Thereafter, prosecution moved an application for framing an additional charge under Section 377, IPC. The said application was allowed and charge under Section 377 was framed to which also the appellant did not plead guilty. His defence was of total denial and that he was falsely implicated.

6. The prosecution examined 12 witnesses in all. The following points thus arose for consideration of the Trial Court:-

“1. Whether the prosecution proves that accused on 6.3.2012 at about 16.00 Hrs. in the vicinity of Indira Nagar, old Jalna, Taluka and District : Jalna, kidnapped xxx.. d/o Iliyas Pathan a minor girl under 16 years of age from her lawful guardianship & without his consent, and thereby committed an offence punishable u/s 363 of I.P.C.?

2. Whether the prosecution further proves that accused on above date, time and place of offence, committed rape on xxx.. and thereby committed an offence punishable u/s 376 of IPC?

3. Whether the prosecution further proves that accused on above date, time and place of offence, committed carnal intercourse against the order of nature with minor girl xxx.. and thereby committed an offence punishable u/s 377 of IPC?

4. Whether the prosecution further proves that accused on above date, time and place of offence, committed murder intentionally or knowingly causing death of xxx.., and thereby committed an offence punishable u/s 302 of IPC?”

7. The Trial Court discussed the evidence at length in the context of each point and answered them in the affirmative. It held the appellant guilty of the offences referred to above. The Trial Court thereafter compared the ‘aggravating circumstances’ vis-a-vis the ‘mitigating circumstances’ and having found that the crime was committed in a most brutal, diabolical and revolting manner which shook the collective conscience of the society, it found that the R.R. Test (rarest of the rare cases) is fully attracted, hence capital punishment was imposed on the appellant under Section 302, IPC.

8. The High Court considered the death reference as well as the appeal preferred by the appellant against the trial Court judgment and after scrutinising the prosecution evidence, reached the following factual issues:-

“A. Accused was found with victim girl in a house one door of which was locked from outside and another door closed from inside,

B. Multiple injuries found on the person of victim,

C. Medical evidence showing that the girl was forcibly raped and done to death,

D. Recovery of blood stained jeans pant and full bush shirt (torn) from the accused,

E. Motive,

F. Failure of accused to offer plausible explanation to the incriminating circumstances against him.”

9. The High Court held that the circumstances conclusively prove that all the pieces of the puzzle fit so perfectly that they leave no reasonable ground for a conclusion consistent with the hypothesis of the innocence of the appellant, rather the same leads to the irrefutable conclusion that it is the appellant who took away the victim child to his house, sexually assaulted her, committed unnatural intercourse and throttled her to death. Consequently, the conviction of the appellant under Sections 302, 376, 377 and 363 of the IPC. was upheld.

10. The High Court thereafter engaged itself on the question of quantum of sentence and as to whether the R.R. Test was attracted to the facts and circumstances of this case. The High Court drew up the balance sheet of the ‘aggravating’ and ‘mitigating’ circumstances and after their comparative analysis, it concurred with the extreme penalty awarded by the trial Court and confirmed the death sentence.

11. We have heard Ms. Nitya Ramkrishnan, Learned Counsel for the appellant and Mr. Nishant R. Katneshwarkar, Learned Counsel for the State of Maharashtra on merits as well as on the contentious issue re: quantum of sentence and have minutely perused the relevant record.

12. Learned Counsel for the appellant argued that there are chinks in the culpability calculus that have a direct bearing on the quantum of sentence as well. She urged that according to Azbar (P.W.2), the appellant was distributing chocolates to children near Maroti Temple around 3.30 to 4.00 p.m. and that the mother of the victim called her husband Iliyas (P.W.9) around 5.00 p.m. to inform that the deceased-victim had been missing since 4.00 p.m. There is no evidence that she was one amongst the children to whom the appellant was distributing chocolates; where had the victim been until 4.00 p.m. and where and when was she last seen and in whose company? The argument is that the victim was not lastly seen in the company of the appellant. It was then urged that the appellant’s house is four houses away from that of the victim; there are other houses next and opposite to that of the appellant, therefore, it is unbelievable that nobody saw the victim child being taken away by the appellant. She pointed out that five policemen entered the house of the appellant and the informant (P.W.9) also statedly accompanied them but the police officials in their depositions have not made any such reference.

13. According to Learned Counsel for the appellant, Azbar (P.W.2) also went to the house of the appellant only after learning that the victim had been traced in the house of the appellant, yet he claims to have seen the appellant under the cot while the victim was on the cot inside the house. It was unbelievable that even after the police had entered the 10×10 room and had hunted him out, the appellant would still remain under the cot until P.W.2 reached the spot. Similarly, Aslam (P.W.5) who is the maternal uncle of the victim, also went to the appellant’s house only after the victim had been found there. Yet, he too found the appellant under the cot.

According to the Learned Counsel, all these witnesses, namely, P.W.2, P.W.3, P.W.4, P.W.5 and P.W.9 have been set out after learning that the child had been found purportedly to describe a scene immediately upon entering the house, which naturally cannot be the case. It was strongly urged that most of these persons did not witness the crime or scene of the crime as they have deposed that the child and the appellant were found in a state of undress, only Dilip Pralhadrao Tejan (P.W.3), who is a police official, says that the appellant was found outraging the modesty of the child. It thus suggests that the testimony of all these witnesses is not accurate and at best it leads to an inference that the child was found in the same house as was the appellant. It was pointed out that the testimony of P.W.3, P.W.4 and P.W.9 varies at the point as to what they saw on entering the house. However, P.W.3’s statement claiming that the appellant was found outraging the modesty of the child under the bed, is different from the version of others who found a cloth around the bed and could see the appellant and the victim only when the cloth was removed. P.W.9 (father of the victim child) does not state the same facts as have been described by P.W.3 or P.W.4 and thus there is inconsistent version on what was seen inside the appellant’s house upon entering.

14. It was then urged that the houses in the area were in a close cluster and it would have been difficult for the appellant to take the child away without being noticed by anyone. Further, prosecution has failed to establish two crucial facts, namely, the place where the victim child was last seen and the estimated time of her death. In the absence of surety of these two facts as to when was the victim child last seen alive and her approximate time of death, the recovery of her dead body between 9.30-10.00 p.m. in the house of the appellant per se is insufficient to establish the charge beyond reasonable doubt.

15. It was contended that even as per P.W.9 (the informant) the appellant along with his family had been residing in that very house since the past 7-10 years, but the prosecution has failed to explain as to where had the other members of the family been during those six hours, between 4.00 p.m. to 10.00 p.m. on that fateful day. This assumes significance in view of the DNA report which merely indicates that they are from the same paternal progeny.

16. Learned Counsel lastly urged that since the basis for the match in DNA report is the comparison with the blood sample of the appellant, it was imperative upon the prosecution to establish that the sample indeed was that of the appellant only. The person, who drew the blood sample has not been examined as a witness nor the contemporary record of the procedure for taking blood sample has been explained. There is only a bald statement of the Investigating Officer that the appellant was referred to Ghati hospital, Aurangabad. There is no memo or material to show as to who collected the blood sample of the appellant, when was the sample collected and where and how was it preserved. As against it, the medical examination reports and sample collection reports of the appellant (Exbts. 21, 21A and 22) indicate that no blood sample was taken which shows the incorrectness of the Investigating Officer’s testimony.

The chemical lab at Mumbai also does not mention any receipt of a blood sample of the appellant. She argued that the prosecution has strongly relied on the D.N.A. evidence despite the fact that the method of analysis used, i.e., Y-Chromosome Short Tandem Repeat Polymorphism (Y-STR) has certain inherent limitations due to which accurate identification of the accused cannot be established beyond a reasonable doubt. Unlike other processes like autosomal STR analysis, Y-STR analysis does not allow for individual identification in the same male lineage. It was thus contended that the prosecution has failed to bring the guilty at home, hence the appellant deserves the benefit of doubt.

17. Learned State Counsel, however, refuted all the appellant’s contentions and took us through the ocular and medical evidence, especially the eye-witness’s account to urge that there is no error or lapse worth whispering committed by the prosecution in establishing the appellant’s guilt. He extensively referred to the relevant parts of the impugned judgments to explain as to how the ‘aggravating’ and ‘mitigating’ circumstances have been drawn up and weighed before awarding or confirming the death sentence.

18. Before entering the hassled arena of sentencing, it is apropos to recapitulate the facts and evidence on record to find out whether the prosecution has been able to prove the charges against the appellant beyond any reasonable doubt.

19. The victim was not even 2-year old when she died an unnatural death. The post mortem was conducted on 07.03.2012 by a panel of doctors, which included Dr. B.L. Survesh (P.W.7) and Dr. Bedarkar (P.W.8). According to Dr. B.L. Survesh, the external injuries corresponded to the internal injuries and were sufficient in the ordinary course of nature to cause death. All the injuries were ante-mortem and the cause of death was throttling. The Medical Board found following injuries on external examination on the body of the deceasedvictim:-

1. Linear abrasion on right side of chest 2 cm, oblique, reddish in colour.

2. Abrasion over left zygomatic area, 5 x 2 cm.

3. Linear abrasion, left side of neck, above clavicle reddish, about 1 cm in length and 2 in number.

4. Linear abrasion, left scapular region, two in number, one below other 21/2 cm. reddish in colour.

5. Abrasion, 5 in number, at the centre over lower back, 1/2 x 1 cm each in size.

6. Contrusion over vault 1/2 x 1/2 cm.

7. Abrasion over right sub mandibular region, 1 cm reddish.

8. Abrasion, right supra clavicular region, 2 in number, 1/2 cm each, over above other.

20. The panel of doctors further found following injuries on the internal examination of the body:-

1. Neck dissection under the skin, contusion to muscle and subcutaneous tissues corresponding to abrasions on skin.

2. Right and left lungs congested.

3. Heart was found congested. 13

4. Right side of the heart was full of blood and left side was empty.

5. Tongue was inside the mouth between the teeth.

6. Stomach was congested and was containing semidigested food.

21. On the vaginal examination of the victim, evidence of tear at posterior vaginal wall and triangular shape tear 2x1x1/2 cm. was noticed and hymen was found ruptured. Dr.Survase (P.W.7) has deposed that “on perusal of report as to examination of anal swab in DNA report, and, considering observation in clause 15 of the post mortem report, I opine that there was unnatural sex.” Similarly, Dr.Bedarkar (P.W.8) after perusing the same DNA report and post mortem report has stated that, ” I opine that vaginal and anal intercourse was performed.”

22. It, therefore, stands established beyond any pale of doubt that the victim child was subjected to forcible vaginal and anal/unnatural intercourse and she died of asphyxia due to throttling.

Connection between the appellant and the crime

23. Azbar (P.W.2) had known the appellant since their childhood as both of them had been residing in the same lane. On 06.03.2012, while going towards his house at about 3.30 to 4.00 p.m. he met the appellant who was drunk and was distributing chocolates to children near Maroti Temple. His friend Gayas called him [Azbar (P.W.2)] at 5.00 p.m. to inform that the victim, daughter of Iliyas, was missing. They started looking for the child near Bhagya Nagar Railway Station, Mhada Colony, Aurangabad Chouphuly, Sanjay Nagar, etc. Then he got to know that the victim had been traced in the house of the appellant. P.W.2 then went to the appellant’s house at Indira Nagar.

There was a crowd of people there and police was already present when he entered the house and saw that the child was lying on a cot and a blanket was put on her body. The appellant was under the said bed. The witness also slapped the appellant 2-3 times before the police took the later. P.W.2 was called on the next day on 07.03.2012 for spot panchnama. One white paper, a pencil, blue broken bangle, one pass book carrying names of Reena and Lakshmi Bai Ghumare and one piece of a saree was found and seized by the police and kept in an envelope. The panchnama bears his signatures. In his cross-examination, P.W.2 has categorically stated that though the parents of the appellant are alive but they were not present at his house at the time of occurrence. He has explained in detail as to how the panchnama was prepared.

24. Dilip Pralhadrao Tejan (P.W.3) the police official, had been attached to Kadim Jalna police station on 06.03.2012. The missing report lodged by Ilias (P.W.9) about his 2-year old daughter was handed over to P.W.3 for inquiry. P.W. 3 along with policemen Katake, Jawale, Rathod and Chavan was in Indira Nagar area of Jalna where he got to know that the appellant was seen distributing chocolates and icecream/fruits to minor children. P.W.3 along with other police officials, therefore, went to the house of the appellant between 9.30 to 9.45 p.m. and found that there were two doors, one was locked from outside and the other from inside. P.W.3 peeped through the gap in the door and noticed some cloth around the bed. He called the appellant by name but nobody responded.

The witness then broke open the door and entered the house and found the appellant outraging the modesty of the victim child under the bed. The police-party covered the baby with a quilt and placed her on the bed. Meanwhile about 20 persons followed them including Aslam, the maternal uncle of the missing child. The victim child was sent along with Aslam for medical treatment. Since several more agitated persons gathered at the scene, the police rescued the appellant and took him to the police station. The peole were demanding that the appellant be handed over to them. On a specific court question as to in which manner and in what circumstances P.W.3 saw the accused and the deceased, he had answered in no uncertain terms that the “deceased kid was found naked and blood was oozing from her mouth and private parts. There was no shirt on the person of the accused, his jean and trouser was found on his knee. Accused was also found naked.”

25. Constable Sanjay Katake (P.W.4) was also a member of the police team led by API Dilip Pralhadrai Tejan which was looking for the missing child in Indira Nagar area of Jalna. P.W.4 has also unequivocally deposed that they were informed by the people in the vicinity that the appellant ‘used’ to distribute icecream and chocolates among the children and on that day also he was seen doing so. The police team, therefore, went to the house of the appellant which had two doors. One of the door was locked from outside whereas the other was from inside. The police party called the appellant by name, but he did not respond. Then, they peeped through the slit of the door and noticed a bed and some piece of cloth around it and got suspicious that there was somebody under the bed. They broke open the door and entered the house. A.S.I. Tejankar removed the cloth around the bed and the police team found the appellant and the victim child under the bed in naked condition.

Tejankar placed the child over the bed. “Blood was found oozing from mouth and private part of that kid”. The victim was wrapped in a blanket and rushed to the hospital through her maternal uncle. 4-5 persons who had entered the house along with the police team insisted on having the custody of the appellant. Meanwhile, 150-200 more persons gathered at the spot. The appellant was rescued from the mob and taken to the police station. The mob became aggressive and started pelting stones on the police vehicles and the policemen. Some loss was also caused to the house of the appellant. P.W.4 is the same police official who lodged the report at Kadim Jalna Police Station (Exbt. 45). In his cross-examination, it was suggested to P.W.4 that there is a population of about 5000 in the vicinity and that he never accompanied Mr. Tejankar, ASI and he knew nothing about the incident.

26. Aslam (P.W.5) has deposed that deceased was daughter of his sister. The husband of his sister, Iliyas informed him on 06.03.2012 on telephone that deceased was missing and he asked him to bring a photograph of the victim to the police station. Aslam brought one photograph of the child to Kadim Jalna police station and lodged the missing report. The witness thereafter went to look for the missing child in Ambad Chouphuly Railway Station and Moti Bagh area. While he was still looking for her, one Hussain Pathan informed him on phone that the child had been found so he immediately went to the Indira Nagar area, Jalna to the house of the appellant. He noticed that the appellant was under the bed while the victim was lying on the bed. There were no clothes on the person of the child; she was wrapped in a blanket. He then took the victim to Deepak Hospital, Jalna, then to the Civil Hospital, Jalna where the doctors declared her brought dead. The witness has denied in the cross-examination that there was any quarrel between Ilias (P.W.9), father of the victim and the appellant.

27. Nand Kumar Vinayakrao Tope (P.W.6) is a police head constable, who was on duty at Kadim Jalna police station on 12.03.2012. He has deposed that on 11.03.2012 he was asked to carry muddemal along with a covering letter which he deposited on 12.03.2012 in C.A. Office, Mumbai. The covering letter is Exbt. P-51. He also carried the blood sample of the appellant to C.A. Office, Mumbai and deposited the same on 14.03.2012. He has categorically stated in his crossexamination that the blood sample of the appellant bore signatures of the doctors and panches.

28. We may now briefly refer to the statement of Ilias (P.W.9) – father of the victim girl. He has deposed that the child was about two years old; he resides in Indira Nagar, Jalna along with his family, including his wife Aysha; the appellant was also residing in the same lane. On the date of occurrence, i.e, 06.03.2012 he was selling fruits in Nutan Vasahat area of Jalna when his wife informed him on phone at about 5.00 p.m. that their daughter had been missing since 4.00 p.m. He immediately went home where his father and brother had already reached. They started looking for the child in the adjoining localities.

The witness informed the police about his missing daughter who also started searching for her. Azhar Usman meanwhile informed him that the appellant while under the ‘influence of liquor’ was distributing chocolates to children. P.W.9 then went to the house of appellant which was found locked from outside. The missing report of the child was lodged around 8.00-8.30 p.m. The witness also passed on the information to the police that he had gathered from Azhar. The Police party too, therefore, reached at the house of appellant and they broke open one of the doors. The witness and his brother entered the house along with the police and found that his daughter was lying under the bed and the appellant was also lying under the bed. His daughter was naked and there were injuries on her person aw well as private parts.

Police laid the child on the bed and after covering her with a cloth she was taken to Deepak Hospital, Jalna where doctors informed that the victim was already dead. The appellant killed her by pressing her throat. The witness also identified his signatures on the report lodged by him Exbt. P- 67. The witness in his cross-examination denied any dispute with the father of the appellant in connection with the purchase of the premises.

29. The other witness whose statement has a direct bearing on connecting the appellant with the crime is API Rajendrasingh Prabhusingh Gaur (P.W.12), who was attached to Kadim JalnaPolice Station on 06.03.2012. He arrested the appellant at 1.00 a.m. on 07.03.2012. The appellant was brought to the police station by ASI Tejankar. He has further stated that “blue jeans and green shirt on the person of accused was seized. There were blood-stains and semen stains on it. The seizure panchnama Exbt. P-19 bears my signature and also of the accused.” He has further deposed that the father of the victim produced knicker and frock worn by the deceased victim and also the blanket in which she was wrapped. Blue bangle, painjan were also seized under panchnama Exbt. P-32, which bears his signatures along with those of the panches. Muddemal articles shown at S.No. 125 in the chargesheet were the same. Muddemal article Nos. 6 and 7 in the chargesheet were the clothes of the appellant.

The police officer (P.W.12) went to the spot and also collected a paper having blood-stains, piece of blue bangle, a passbook of post office and yellow piece of a saree having blood-stains. All these articles were seized under his signatures and of the panches. P.W.12 has further stated that the appellant was referred to Ghati Hospital, Aurangabad for his medical examination and report Nos. 21 and 21A were obtained. Appellant’s blood sample was taken on 11.03.2012 from S.D.H. Ambad and all the blood samples were sent to Mumbai for DNA examination along with a forwarding letter Exbt. P-51. Since the said blood sample was not sent as per the prescribed format, another blood sample of the appellant was taken by the Medical Officer at S.D.H. Ambad on 13.03.2012 and it was sent along with the covering letter Exbt. P-52. P.W.12 also sent viscera of the victim on 12.03.2012 along with letters which bear his signatures.

The report of the viscera Exbt. P-81 was also obtained. P.W.12 had further identified the reports regarding clothes on the person of the victim and the appellant Exbt. P-82. P.W.12 has been subjected to a fairly long cross-examination but no discrepancy, having bearing on the merits of the case, has been extracted.

30. After a tenacious analysis of the testimonies of the witnesses with respect to the facts seen by each one of them, there remains no room to doubt that on 06.03.2012 the appellant after taking liquor was seen distributing chocolates to children sometime around 3.30/4.00 p.m. The victim child went missing around 4.00 p.m. as was informed to Ilias (P.W.9) by his wife at about 5.00 p.m.

The information of her missing was immediately circulated amongst the family members/relatives and all of them desparately started searching for her. Meanwhile, the missing report was lodged with police as well. During such search operations by the police and also the family members of the missing child, it surfaced that the appellant was distributing chocolates to allure children near Maroti Temple on that day and around that time the child went missing. The police-team, Iliyas – the father of the victim and his brother, genuinely apprehensive and smelling something foul, reached the house of the appellant and nabbed him red-handed under the bed with the victim in naked condition. It further stands established conclusively that deceased had been brutally assaulted and subjected to vaginal and unnatural intercourse.

The victim had been inflicted multiple injuries on face, head, neck, external genetalia as well as inside the uterus and urethra. We may in this regard refer to, in particular, the deposition of Dilip Pralhadrai Tejan (P.W.3), who after making forceful entry inside the appellant’s house, found him outraging the modesty of the child. The appellant had the special knowlege as to in what circumstances the victim child suffered those multiple injuries. The burden to prove that those injuries were not caused by him was on the appellant alone in view of Section 106 of the Evidence Act, which he has miserably failed to discharge though the evidence on record proves beyond doubt that the victim child was in unlawful custody of the appellant from about 4.00 p.m. till she breathed her last breath due to the beastly attack on her.

Scientific Evidence connecting the appellant with the Crime:

31. Dr. Bhanu Das Survase (P.W.7) was a member of the panel of doctors, who conducted post mortem on the dead body of the victim. He has testified that samples of swabs, blood sample and nails sample of the victim were taken by them. So is the statement of Dr. Bedarkar (P.W.8) who has stated that “various types of swabs, nasal swabs, superficial vaginal swab, deep vaginal smear on slide, superficial vaginal smear on slide, anus swab, skin scraping of blood on thigh and abdomen, nails and blood samples of xxx.. were taken.” He has further deposed that all samples were seized and handed over to the police. Police Inspector Rajendrasingh Prabhusingh Guar (P.W.12) has stated on oath that after arresting the appellant, the blue jeans and green shirt on his person were seized and that there were blood-stains and semen stains on it. The knicker and frock of the victim along with blanket in which she was wrapped as well as various articles collected from the scene of crime including a piece of saree having blood-stains, were seized. The blood sample of the appellant was also taken and all the seized articles/samples were sent to Mumbai for examination.

32. Shrikant Hanamant Lade (P.W.11) Assistant Director in Forensic Science Laboratory, Mumbai, who got training in CDFD Institute, Hyderabad also, has authored about 30 papers on DNA, besides a well known book ‘Forensic Biology’. He has testified that they conducted the DNA test as per the guidelines issued by the Director of Forensic Science, Ministry of Home Affairs, New Delhi. Their office received the sealed muddemal from Kadim, Jalna Police Station sent vide letter dated 11.03.2012 as also the blood sample of the appellant sent vide letter dated 13.03.2012 (Exbt. P-52).

The blood sample of the victim was received on 12.03.2012 along with samples of oral swabs and other articles. P.W.11 analysed the oral swabs and other articles of the victim, nasal swabs, superficial vaginal swab, deep vaginal smear on slide, superficial vaginal smear on slide, anus swab, skin scraping of blood on thigh and abdomen, nails as also other blood samples. P.W.11 has further deposed that, “I have extracted DNA from blood sample of Accused Ravi Ghumare, Superficial vaginal swab on Exhibit No.3, deep vaginal swab Exhibit No.4, Deep vaginal swab on slide Exhibit No.5 superficial vaginal swab on slide Exhibit No.6, anal swab Exhibit No.7, skin scrapping of blood on thigh and abdomen Exhibit No.8, blood & semen detected on Exhibit No.3 Jeans pant.

This DNA was amplified by using Y-chromosome specific marker, Y-chromosome short tandem repeat polymorphism [YSTR] and by using Polymerase Change Reaction [for short PCR] amplification technique. DNA profile was generated. I analyzed all these DNA profiles. My interpretation is male haplotypes of semen detected on Exhibit No.3 Superficial vaginal swab Exhibit No.4 deep vaginal sway Exhibit No.3 Superfinal vaginal swab Exhibit No.4 deep vaginal sway Exhibit No.5 deep vaginal smear on slide, Exhibit No.6 superficial vaginal smear on slide, Exhibit No.7 anal swab, Exhibit No.8 skin scrapings of blood on thigh and abdomen and blood and semen detected on Exhibit No.3, jeans pant of F.S X. ML Case No.DNA 951/12 matched with the male haplotypes of blood sample of Exhibit No.1, Ravi Ashok Ghumare of F.S.L. ML Case No.DNA-209/12.

My opinion is DNA profile of semen detected on Exhibit No.3 superficial vaginal swab, Exhibit 4 deep vaginal swab, Exhibit No.5 deep vaginal smear on slid Exhibit No.6 superficial vaginal smear on slide, Exhibit No.7 anal swab, Exhibit No.8, skin scrapings of blood on thigh and abdomen, blood and semen detected on Exhibit No.3 jeans pant of F.S.L ML Case No.DNA- 951/112 and blood sample of Exhibit No.1 Ravi Ashok Ghumare of F.S.LML Case No.DNA-209/12 is from the same paternal progeny. Accordingly, I prepared examination report filed with list Exhibit No.71 bear my signature, Contents are correct. It is at Exhibit No.75. Analysis of all above DNA profiles is shorn in table in the same report. Blue jeans pant and shirt of Accused Exhibit No.3 & 4 were referred by biological section of our office. I extracted DNA from blood and semen detected Exhibit No.3, full jeans pant, blood detected on Exhibit No.4 full bush shirt, and sample of Ravi Ghumare.

Then this DNA was amplified by using 15 STR Loci using PCR amplification technique. My interpretation is DNA profile of blood and semen detected on Exhibit No.3 full jeans pant, blood detected on Exhibit No.4 full bush shirt [torn] of F.S.l. ML. Case No.DNA-951/12 and blood sample of Ravi Ashok Ghumare is identical and from one and same source of male origin. DNA profiles match with the maternal and paternal alleles in the source of blood.”

33. Shrikant Lade (P.W.11) accordingly prepared the DNA report which is duly attested by the Assistant Chemical Analyser also. On seeing the contents of his report, P.W.11 has pertinently deposed that “I can opine on going through the reports Exbts. 75-76 that there were sexual intercourse and unnatural intercourse on the victim by the accused Ravi.”

[emphasis applied].

34. The unshakable scientific evidence which nails the appellant from all sides, is sought to be impeached on the premise that the method of DNA analysis “Y-STR” followed in the instant case is unreliable. It is suggested that the said method does not accurately identify the accused as the perpetrator; and unlike other methods say autosomal-STR analysis, it cannot distinguish between male members in the same lineage.

35. We are, however, not swayed by the submission. The globally acknowledged medical literature coupled with the statement of P.W.11 – Assistant Director, Forensic Science Laboratory leaves nothing mootable that in cases of sexual assualt, DNA of the victim and the perpetrator are often mixed. Traditional DNA analysis techniques like “autosomal- STR” are not possible in such cases. Y-STR method provides a unique way of isolating only the male DNA by comparing the YChromosome which is found only in males. It is no longer a matter of scientific debate that Y-STR screening is manifestly useful for corroboration in sexual assault cases and it can be well used as excalpatory evidence and is extensively relied upon in various jurisdictions throughout the world.1 & 2. Science and Researches have emphatically established that chances of degradation of the ‘Loci’ in samples are lesser by this method and it can be more effective than other traditional methods of DNA analysis.

Although Y-STR does not distinguish between the males of same lineage, it can, nevertheless, may be used as a strong circumstantial evidence to support the prosecution case. Y-STR techniques of DNA analysis are both regularly used in various jurisdictions for identification of offender in cases of sexual assault and also as a method to identify suspects in unsolved cases. Considering the perfect match of the samples and there being nothing to discredit the DNA analysis process, the probative value of the forensic report as well as the statement of P.W.11 are very high. Still further, it is not the case of the appellant that crime was committed by some other close relative of him. Importantly, no other person was found present in the house except the appellant.

36. There is thus overwhelming eye-witness account, circumstantial evidence, medical evidence and DNA analysis on record which conclusively proves that it is the appellant and he alone, who is guilty of committing the horrendous crime in this case. We, therefore, unhesitatingly uphold the conviction of the appellant.

Motive

37. Though the High Court has observed that ‘satisfaction of lust’ and ‘removal of trace’ was the appellant’s motive but motive is not an explicit requirement under the Indian Penal Code, though ‘motive’ may be helpful in proving the case of the prosecution in a case of circumstantial evidence. This Court has held in a catena of decisions that lack of motive would not be fatal to the case of prosecution as sometimes human beings act irrationally and at the spur of the moment. The case in hand is not entirely based on circumstantial evidence as there are reliable eye-witness depositions who have seen the appellant committing the crime, may be in part. Such an unshakable evidence with dense support of DNA test does not require the definite determination of the motive of the appellant behind the gruesome crime.

Sentencing:

38. On the question of sentence, Learned Counsel for the appellant vehemently urged that the Courts below have been largely influenced by the ‘nature’ and ‘brutality’ of the crime while awarding the extreme sentence of death penalty. She referred to a list of as many as 35 decisions rendered by this Court in the cases of rape and murder of a child-victim in which the death sentences were commuted to life imprisonment. It was urged that brutality of the crime alone is not sufficient to impose the sentence of death; it is imperative on the State to establish that the convict is beyond reform and to this end it is relevant to see whether this is the first conviction or there has been previous crimes. The socioeconomic conditions of the convict and the state of mind must be assessed by the Court before awarding such a penalty; the death penalty must not be awarded in a case of circumstantial evidence as any chink in the culpability calculus would interdict the extreme penalty.

Learned Counsel heavily relied upon

(i) Kalu Khan v. State of Rajasthan (2015) 16 SCC 492 in which a three-Judge Bench of this Court commuted the death sentence in murder, abduction and rape, holding that the life imprisonment would serve the object of reformation, retribution and prevention and that giving and taking life is divine, which cannot be done by Courts unless alternatives are foreclosed. Another three-Judge Bench decision in Sunil v. State of Madhya Pradesh (2017) 4 SCC 393 where a 25- year old was held guilty of murder and rape of a 4-year old child, but not sent to gallows on the parameters that he could be reformed and rehabilitated, has been pressed into aid. She, in specific, cited several three-Judge Bench judgments where the young age of the accused was taken as a mitigating circumstance and in the absence of previous criminal history, the conduct of the accused while in custody and keeping in view the socio-economic strata to which he belonged, the possibility of reform was not ruled out and death penalty was commuted.

39. Learned Counsel for the appellant placed great reliance on a three-Judge Bench decision of this Court dated December 12, 2018 rendered in Rajindra Pralhadrao Wasnik v. State of Maharashtra in Review Petition(Crl.) Nos. 306-307/2013 in which the appellant was held guilty of rape and murder of a 3- year old child and the death sentence was substituted by the life imprisonment with a rider, “that the convict shall not be released for the rest of his life”. This Court viewed in that case that

(a) the case was solely based on circumstantial evidence,

(b) probability of reformation and rehabilitation could not be ruled out,

(c) DNA sample of the accused was taken, but not submitted in the Trial Court, and

(d) the factum of pendency of two similar cases against the accused reflecting on his bad character was not admissible. Yet another three-Judge Bench decision of this Court in Parsuram v. State of Madhya Pradesh (Criminal Appeal Nos. 314-315 of 2013), decided on 19th February, 2019 where also death sentence awarded to a 22-year old who was found guilty of rape and murder of a minor girl, was commuted on the principles quoted above, has been relied upon.

40. The appellant’s Counsel urged that the High Court ought not to have followed

(i) Dhanjoy Chaterjee v. State of West Bengal (1994) 2 SCC 220, which was later on doubted by this Court in Shankar Kishanrao Khade v. State of Maharashtra (2013) 5 SCC 546 and

(ii) Shivaji v. State of Maharashtra (2008) 3 SCC 269 which too was held to be per curian in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498. She very passionately urged that neither the High Court nor the Trial Court have given reasons for imposition of death penalty as both the Courts have been influenced by the nature of the crime. The mitigating circumstances of the appellant were inadequately represented. The brutality of the crime is the pre-dominant ground for imposition of death penalty though this Court has cautioned contrarily in a catena of decisions. Both the Courts have failed in recording a finding that the appellant was beyond reform and unless it was so found, the case cannot belong to the ‘rarest of the rare’ category.

41. Relying upon the facts like

(i) lack of criminal antecedents;

(ii) no record of anti-social conduct prior to the crime;

(iii) appellant being 25-30 years of age;

(iv) brutality of crime cannot be a ground to award death sentence; and

(v) the appellant belongs to poor section of society, his learned Counsel urged that this is not a fit case for imposition of death penalty.

42. Learned State Counsel, contrarily, maintained that the instant case satisfies the principle of ‘rarest of the rare cases’ and the appellant who committed the crime of rape and murder of a barely 2-year old innocent toddler in the most dastardly manner, does not deserve any liniency. According to him, the appellant is a menace to the society and to deter such like crimes against mankind, this Court should show no misplaced sympathy.

43. The question which eventually falls for consideration is whether the instant case satisfies the test of ‘rarest of the rare cases’ and falls in such exceptional category where all other alternatives except death sentence, are foreclosed and whether this Court should explore the award of actual life imprisonment as prescribed by this Court in Swamy Shraddananda @ Murli Manohar Mishra v. State of Karnataka (2008) 13 SCC 767 which has got seal of approval of the Constitution Bench in Union of India v. V. Sriharan @ Murugan & Ors. (2016) 7 SCC 1.

44. The Constitution Bench of this Court in Bachan Singh v. State of Punjab (1980) 2 SCC 684, while upholding the constitutionality of death penalty under Section 302 IPC and the sentencing procedure embodied in Section 354(3) of the Code of Criminal Procedure, struck a balance between the protagonists of the deterrent punishment on one hand and the humanity crying against death penalty on the other and elucidated the strict parameters to be adhered to by the Courts for awarding death sentence. While emphasising that for persons convicted of murder, life imprisonment is the ‘rule’ and death setnence an ‘exception’, this Court viewed that a rule abiding concern for the dignity of the human life postulates resistance in taking the life through laws instrumentality and that the death sentence be not awarded “save in the rarest of the rare cases” when the alternative option is foreclosed.

45. In Machhi Singh v. State of Punjab (1983) 3 SCC 470, this Court formulated the following two questions to be considered as a test to determine the rarest of the rare cases in which the death sentence can be inflicted:

“(a) Is there something uncommon, which renders sentence for imprisonment for life inadequate calls for death sentence?

(b) Rather the circumstances of the crime such that there is no alternative, but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speaks in favour of the offender?”

46. Machhi Singh then proceeded to lay down the circumstances in which death sentence may be imposed for the crime of murder and held as follows:-

“32. The reasons why the community as a whole does not endorse the humanistic approach reflected in “death sentence-in-no-case” doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of “reverence for life” principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it.

The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by “killing” a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self- preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so “in rarest of rare cases” when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:

I. Manner of commission of murder

33. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,

(i) when the house of the victim is set aflame with the end in view to roast him alive in the house.

(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.

(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

II. Motive for commission of murder

34. When the murder is committed for a motive which evinces total depravity and meanness. For instance when

(a) a hired assassin commits murder for the sake of money or reward

(b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or

(c) a murder is committed in the course for betrayal of the motherland.

III. Anti-social or socially abhorrent nature of the crime

35. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.

(b) In cases of “bride burning” and what are known as “dowry deaths” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

IV. Magnitude of crime

36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

V. Personality of victim of murder

37. When the victim of murder is

(a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder

(b) a helpless woman or a person rendered helpless by old age or infirmity

(c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust

(d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons …..”

47. It thus spells out from Machhi Singh (supra) that extreme penalty of death sentence need not be inflicted except in gravest cases of extreme culpability and where the victim of a murder is … (a) an innocent child who could not have or has not provided even an excuse, much less a provocation for murder…”, such abhorent nature of the crime will certainly fall in the exceptional category of gravest cases of extreme culpability.

48. This Court in Machhi Singh’s case confirmed the death sentence awarded to Kashmir Singh – one of the appellants as he was found guilty of causing death to a poor defenceless child (Balbir Singh) aged 6 years. The appellant Kashmir Singh was categorised as a person of depraved mind with grave propensity to commit murder.

49. Bachan Singh and Machhi Singh, the Constitution Bench and the Three-Judge Bench decisions respectively, continue to serve as the foundation-stone of contemporary sentencing jurisprudence though they have been expounded or distinguished for the purpose of commuting death sentence, mostly in the cases of

(i) conviction based on circumstantial evidence alone;

(ii) failure of the prosecution to discharge its onus re: reformation;

(iii) a case of residual doubts; and

(iv) where the other peculiar ‘mitigating’ circumstances outweighed the ‘aggravating’ circumstances.

50. It is noteworthy that the object and purpose of determining quantum of sentence has to be ‘society centric’ without being influenced by a ‘judge’s’ own views, for society is the biggest stake holder in the administration of criminal justice system. A civic society has a ‘fundamental’ and ‘human’ right to live free from any kind of psycho fear, threat, danger or insecurity at the hands of anti-social elements. The society legitimately expects the Courts to apply doctrine of proportionality and impose suitable and deterent punishment that commensurate(s) with the gravity of offence.

51. Equally important is the stand-point of a ‘victim’ which includes his/her guardian or legal heirs as defined in Section 2(wa), Cr.P.C. For long, the criminal law had been viewed on a dimensional plane wherein the Courts were required to adjudicate between the accused and the State. The ‘victim’- the de facto sufferer of a crime had no say in the adjudicatory process and was made to sit outside the court as a mute spectator. The ethos of criminal justice dispensation to prevent and punish ‘crime’ would surreptitiously turn its back on the ‘victim’ of such crime whose cries went unheard for centuries in the long corridors of the conventional apparatus. A few limited rights, including to participate in the trial have now been bestowed on a ‘victim’ in India by the Act No. 5 of 2009 whereby some pragmatic changes in Cr.P.C. have been made.

52. The Sentencing Policy, therefore, needs to strike a balance between the two sides and count upon the twin test of

(i) deterrent effect, or

(ii) complete reformation for integration of the offender in civil society. Where the Court is satisfied that there is no possibility of reforming the offender, the punishments before all things, must be befitting the nature of crime and deterrent with an explicit aim to make an example out of the evil-doer and a warning to those who are still innocent. There is no gainsaying that the punishment is a reflection of societal morals. The subsistence of capital punishment proves that there are certain acts which the society so essentially abhores that they justify the taking of most crucial of the rights – the right to life.

53. If the case-law cited on behalf of the appellant where this Court commuted death sentence into life imprisonment for the ‘rest of the life’ or so is appreciated within these contours, it won’t need an elaborate discussion that the peculiarity of the facts and circumstances of each case prompted this Court to invoke leniency and substitute the death sentence with a lesser punishment. The three-Judge Bench decision in Rajendra Pralhadrai Washnik (supra) is clearly distinguisahable on this very premise as that was a case, not only based on circumstantial evidence but where even the DNA sample of the accused though taken was not submitted in the trial Court.

It was thus a case of “residuary doubts” as explained by this Court in Ashok Debbarma v. State of Tripura (2014) 4 SCC 747. The same analogy takes away the persuvasive force in Parsuram (supra), for that too was a case where the guilt was established only on the basis of circumstantial evidence.

54. Contrary to it, a Three-Judge Bench of this Court in Vsanta Sampat Dupare v. State of Maharashtra (2017) 6 SCC 631, which is very close on facts to this case, found the convict guilty of raping and battering to death a little girl of 4 years after luring her by giving chocolates. The prosecution established its case by relying upon the ‘last seen theory’ as the appellant was seen taking away the victim on a bicycle on the fateful day. The eye-witness account, the disclosure statement made by the accused coupled with the other circumstantial evidence nailed him. The death setence was confirmed by this Court on 26th November, 2014.

He, thereafter filed a Review Petition after about three years, claiming that post-confirmation of his death sentence, he had improved his academic qualification, completed the Gandhi Vichar Pariksha and had also participated in the Drawing Competition organised sometime in January, 2016. It was also asserted that his jail record was without any blemish and there was a possibility of the accused being reformed and rehabilitated. This Court dismissed the Review Petition by way of a self-speaking judgment, holding that the aggravating circumstances, namely, the extreme depravity and the barbaric manner in which the crime was committed and the fact that the victim was a helpless child of four years clearly outweigh the mitigating circumstances now brought on record.

55. In Khushwinder Singh v. State of Punjab, (2019) 4 SCC 415, this Court affirmed the death sentence of an accused who had killed six innocent persons, out of which two were minors, by kidnapping three persons, drugging them with sleeping tablets, and then pushing them into a canal. Thereafter, three other members of the same family were also done away with. This Court upheld the award of capital punishment observing as follows:-

“14. Now, so far as the capital punishment imposed by the learned Sessions Court and confirmed by the High Court is concerned, at the outset, it is required to be noted that, as such, the learned counsel appearing on behalf of the accused is not in a position to point out any mitigating circumstance which warrants commutation of death sentence to the life imprisonment. In the present case, the accused has killed six innocent persons, out of which two were minors – below 10 years of age. Almost, all the family members of PW 5 were done to death in a diabolical and dastardly manner. Fortunately, or unfortunately, only one person of the family of PW 5 could survive. In the present case, the accused has killed six innocent persons in a pre-planned manner.

The convict meticulously planned the time. He first kidnapped three persons by way of deception and took them to the canal and after drugging them with sleeping tablets, pushed them in the canal at midnight to ensure that the crime is not detected. That, thereafter he killed another three persons in the second stage/instalment. Therefore, considering the law laid down by this Court in Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673] , the case would fall in the category of the “rarest of rare case” warranting death sentence/capital punishment. The aggravating circumstances are in favour of the prosecution and against the accused. Therefore, striking a balance between the aggravating and mitigating circumstances, we are of the opinion that the aggravating circumstance would tilt the balance in favour of capital punishment. In the facts and circumstances of the case, we are of the opinion that there is no alternative punishment suitable, except the death sentence.

The crime is committed with extremist brutality and the collective conscience of the society would be shocked. Therefore, we are of the opinion that the capital punishment/death sentence imposed by the learned Sessions Court and confirmed by the High Court does not warrant any interference by this Court. Therefore, we confirm the death sentence of the accused imposed by the learned Sessions Court and confirmed by the High Court while convicting the appellant for the offence punishable under Section 302 IPC.”

56. In a recent Three-Judge Bench decision of this Court in Manoharan v. State by Inspector of Police, Variety Hall Police Station, Coimbatore, (2019) SCC Online 951, the appellant’s capital punishment was confirmed by the High Court in a case in which he along with his co-accused was held guilty of kidnapping a 10-year old girl and her 7-year old brother. After committing gang rape of the minor girl, both the victims were done away with by throwing them into a canal which caused their death by drowning. This Court (by majority) upheld the death sentence, concluding as follows:-

“41. In the circumstances, we have no doubt that the trial court and High Court have correctly applied and balanced aggravating circumstances with mitigating circumstances to find that the crime committed was cold blooded and involves the rape of a minor girl and murder of two children in the most heinous fashion possible. No remorse has been shown by the Appellant at all and given the nature of the crime as stated in paragraph 84 of the High Court’s judgment it is unlikely that the Appellant, if set free, would not be capable of committing such a crime yet again. The fact that the Appellant made a confessional statement would not, on the facts of this case, mean that he showed remorse for committing such a heinous crime. He did not stand by this confessional statement, but falsely retracted only those parts of the statement which implicated him of both the rape of the young girl and the murder of both her and her little brother. Consequently, we confirm the death sentence and dismiss the appeals.”

57. It is equally apt at this stage to refer the recent amendments carried out by Parliament in the Protection of Children from Sexual Offences Act, 2012 by way of The Protection of Children from Sexual Offences (Amendment) Act, 2019 as notified on 6th August, 2019. The unamended Act defines “Aggravated Penetrative Sexual Assault” in Section 5, which included, “whoever commits aggravated penetrative sexual assault on a child below the age of 12 years.” Originally, the punishment for an aggravated sexual assault was rigorous imprisonment for a term not less than 10-years but which may extend for imprisonment for life with fine.

58. The recent amendment in Section 6 of 2012 Act has substituted the punishment as follows:-

“Post the Amendment, Section 6 has been substituted as follows:-

“6. (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death.

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.”

[Emphasis applied]

59. The minimum sentence for an aggravated penetrative sexual assault has been thus increased from 10 years to 20 years and imprisonment for life has now been expressly stated to be imprisonment for natural life of the person. Significantly, ‘death sentence’ has also been introduced as a penalty for the offence of aggravated penetrative sexualt assault on a child below 12 years.

60. The Legislature has impliedly distanced itself from the propounders of “No-Death Setence” in “No Circumstances” theory and has re-stated the will of the people that in the cases of brutal rape of minor children below the age of 12 years without murder of the victim, ‘death penalty’ can also be imposed. In the Statement of Objects and Reasons of amendment, Parliament has shown its concern of the fact that “in recent past incidents of child sexual abuse cases administering the inhuman mindset of the accused, who have been barbaric in their approach to young victim, is rising in the country.”

If the Parliament, armed with adequate facts and figures, has decided to introduce capital punishment for the offence of sexual abuse of a child, the Court hitherto will bear in mind the latest Legislative Policy even though it has no applicability in a case where the offence was committed prior thereto. The judicial precedents rendered before the recent amendment came into force, therefore, ought to be viewed with a purposive approach so that the legislative and judicial approaches are well harmonised.

61. In the light of above discussion, we are of the considered opinion that sentencing in this case has to be judged keeping in view the parameters originating from Bachan Singh and Machhi Singh cases and which have since been strengthened, explained, distinguished or followed in a catena of subsequent decisions, some of which have been cited above. Having said that, it may be seen that the victim was barely a two-year old baby whom the appellant kidnapped and apparently kept on assaulting over 4-5 hours till she breathed her last. The appellant who had no control over his carnal desires surpassed all natural, social and legal limits just to satiate his sexual hunger. He ruthlessly finished a life which was yet to bloom. The appellant instead of showing fatherly love, affection and protection to the child against the evils of the society, rather made her the victim of lust.

It’s a case where trust has been betrayed and social values are impaired. The unnatural sex with a two-year old toddler exhibits a dirty and perverted mind, showcasing a horrifying tale of brutality. The appellant meticulously executed his nefarious design by locking one door of his house from the outside and bolting the other one from the inside so as to deceive people into believing that nobody was inside. The appellant was thus in his full senses while he indulged in this senseless act. Appellant has not shown any remorse or repentance for the gory crime, rather he opted to remain silent in his 313 Cr.P.C. statement. His deliberate, well-designed silence with a standard defence of ‘false’ accusation reveals his lack of kindness or compassion and leads to believe that he can never be reformed. That being so, this Court cannot write off the capital punishment so long as it is inscribed in the statute book.

62. All that is needed to be followed by us is what O’ Conner J. very aptly observed in California v. Ramos, 463 U.S. 992 that the “qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination” and in order to ensure that the death penalty is not meted out arbitrarily or capriciously, the Court’s principal concern has to be with the procedure by which the death sentence is imposed than with the substantive factors laid before it.

63. For the reasons aforestated, we dismiss the appeals and affirm the death sentence.

J. (ROHINTON FALI NARIMAN)

J. (SURYA KANT)

NEW DELHI

03.10.2019


SUPREME COURT OF INDIA

Ravi S/o Ashok Ghumare Vs. The State of Maharashtra

[Criminal Appeal Nos. 1488-1489 of 2018]

R. Subhash Reddy, J.

1. I have gone through the opinion of my learned Brother, Surya Kant, J. I am in agreement with the view expressed in the said judgment, to the extent of confirming the conviction recorded against the appellant, for the offence under Sections 363, 376, 377 and 302 of the Indian Penal Code, 1860 (for short ‘IPC’). However, as I am of the view that, this is not a fit case where the appellant is to be awarded capital punishment, i.e, death penalty, as such, I wish to share my view separately, in this judgment.

2. The appellant was tried for committing the rape and murder on the minor girl child “Zoyabano” and he was charged for offence punishable under Sections 363, 376, 377 and 302 IPC. After the trial, learned Additional Sessions Judge at Jalna, by judgment dated 16.09.2015, has held that appellant is guilty for the charges framed against him.

3. By order dated 18.09.2015, the trial court, by recording a finding that crime committed by the appellant is heinous, brutal and inhuman, convicted and sentenced the appellant to death for the offence punishable under Section 302 IPC and ordered that he shall be hanged by neck till he is dead, subject to confirmation by the High Court as per Section 366 of Code of Criminal Procedure and also imposed a fine of Rs.500/- (Rupees Five Hundred Only). Similarly, learned Additional Sessions Judge has convicted the appellant for offence punishable under Section 376 of IPC and ordered sentence to suffer life imprisonment and a fine of Rs. 500/-(Rupees Five Hundred Only) and a sentence of rigorous imprisonment for 10 years for the offence punishable under Section 377 IPC with a fine of Rs.500/-(Rupees Five Hundred Only) and a sentence of R.I. for one year for the offence punishable under Section 363 with a fine of Rs.500/- (Rupees Five Hundred Only). Further, it was ordered that all the sentences of imprisonment shall run concurrently.

4. The reference which was made to the High Court under Section 366 was numbered as Confirmation Case No.1 of 2015 and the appeal preferred by the appellant was numbered as criminal appeal No. 783 of 2015. The High Court by the Common Judgment and Order dated 20.01.2016, while dismissing the criminal appeal preferred by the appellant, has confirmed the death sentence imposed under Section 302 IPC. Hence, these appeals.

5. I am in agreement with the view expressed by my learned Brother, to the extent of upholding conviction, as such, there is no need to appreciate the evidence on-record in detail. As such, I confine consideration of such evidence on-record to the extent to modify the sentence on the appellant. 6. For the conviction recorded against the appellant for the offences alleged against him, by balancing the aggravated and mitigated circumstances, I am of the view that the death sentence imposed on the appellant requires modification to that of the life imprisonment, without any remission, for the following reasons.

7. For the offence under Section 302 of IPC the punishment prescribed for committing murder is death or imprisonment for life. At first instance, challenge to Section 302 of IPC was turned down by this Court in the case of Jagmohan Singh v. State of Uttar Pradesh3. Further, in Constitution Bench, this Court in the case of Bachan Singh v. State of Punjab4, ,concluded that Section 302, providing death penalty for offence of murder is constitutional. In the aforesaid judgment, this Court has indicated the standards and norms, restricting the area for imposition of death penalty. Further, for considering the imposition of sentence of death, aggravating and mitigating circumstances were also broadly indicated.

In the aforesaid judgment, while considering the scope of Section 235(2) read with Section 354(3) of the Code of Criminal Procedure, this Court has held that, in fixing the degree of punishment or in making the choice of sentence for various offences, including one under Section 302, IPC, the Court should not confine its consideration “principally or merely” to the circumstances connected with the particular crime, but also due consideration to the circumstances of the criminal. However, it is observed that, what is the relative weight to be given to the aggravating and mitigating factors, depends on facts and circumstances of each case. The aggravating and mitigating circumstances, as suggested by Dr.Chitale were mentioned in the Judgment. Paragraphs 202 to 207 of the judgment reads as under:

“202. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v. Georgia [33 L Ed 2d 346 : 408 US 238 (1972)] , in general, and clauses 2 (a), (b), (c) and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr Chitale has suggested these “aggravating circumstances”:

“Aggravating circumstances: A court may, however, in the following cases impose the penalty of death in its discretion:

(a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed- (i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.”

203. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.

204. In Rajendra Prasad [(1979) 3 SCC 646 : 1979 SCC (Cri) 749] , the majority said: “It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and Society, public order and the interests of the general public compel that course as provided in Article 19(2) to (6)”. Our objection is only to the word “only”. While it may be conceded that a murder which directly threatens, or has an extreme potentiality to harm or endanger the security of State and Society, public order and the interests of the general public, may provide “special reasons” to justify the imposition of the extreme penalty on the person convicted of such a heinous murder, it is not possible to agree that imposition of death penalty on murderers who do not fall within this narrow category is constitutionally impermissible.

We have discussed and held above that the impugned provisions in Section 302 of the Penal Code, being reasonable and in the general public interest, do not offend Article 19, or its “ethos” nor do they in any manner violate Articles 21 and 14. All the reasons given by us for upholding the validity of Section 302 of the Penal Code, fully apply to the case of Section 354(3), Code of Criminal Procedure, also. The same criticism applies to the view taken in Bishnu Deo Shaw v. State of W.B. [(1979) 3 SCC 714 : 1979 SCC (Cri) 817] which follows the dictum in Rajendra Prasad [(1979) 3 SCC 646 : 1979 SCC (Cri) 749] .

205. In several countries which have retained death penalty, pre-planned murder for monetary gain, or by an assassin hired for monetary reward is, also, considered a capital offence of the first-degree which, in the absence of any ameliorating circumstances, is punishable with death. Such rigid categorisation would dangerously overlap the domain of legislative policy. It may necessitate, as it were, a redefinition of ‘murder’ or its further classification. Then, in some decisions, murder by fire-arm, or an automatic projectile or bomb, or like weapon, the use of which creates a high simultaneous risk of death or injury to more than one person, has also been treated as an aggravated type of offence. No exhaustive enumeration of aggravating circumstances is possible. But this much can be said that in order to qualify for inclusion in the category of “aggravating circumstances” which may form the basis of “special reasons” in Section 354(3), circumstance found on the facts of a particular case, must evidence aggravation of an abnormal or special degree.

206. Dr Chitale has suggested these mitigating factors:

“Mitigating circumstances- In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.”

207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence. Some of these factors like extreme youth can instead be of compelling importance. In several States of India, there are in force special enactments, according to which a “child”, that is, “a person who at the date of murder was less than 16 years of age”, cannot be tried, convicted and sentenced to death or imprisonment for life for murder, nor dealt with according to the same criminal procedure as an adult. The special Acts provide for a reformatory procedure for such juvenile offenders or children.”

8. Further in the three Judge Bench Judgment of this Court, in the case of Machhi Singh and Ors. v.State of Punjab5, this Court has considered tests to determine “rarest of rare” case, to impose death sentence under Section 302 IPC.

9. In the aforesaid judgment, this Court has held that the following questions may be asked and answered, in order to apply the guidelines indicated in Bachan Singhcase2, where the question of imposing the death sentence arises.

(a) Is there something uncommon about the crime which renders sentence for imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances, which speak in favour of the offender?

10. In this judgment, it is held by this Court that the guidelines indicated in Bachan Singhcase2, will have to be culled out and applied to the facts of each individual case, where the question of imposing death sentence arises. Paragraph 38 of the said judgment reads as under:

“38. In this background the guidelines indicated in Bachan Singh case2 will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following prepositions emerge from Bachan Singh case2 :

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

11. In this judgment, on facts, by holding that it is a cold-blooded, calculated and gruesome multiple murders, as a reprisal in a family feud and 17 helpless, defenceless, innocent men, women and children were gunned down while asleep on the same night in quick succession in different neighbouring villages, confirmed the death sentence imposed on Machhi Singh and two others.

12. In this case, learned counsel for the appellant has contended that the Trial Court as well as the High Court, fell in error in confining nature and brutality of crime alone, to award the sentence of death. It is submitted that nature of crime alone is not sufficient to impose the sentence of death, unless State proves by leading cogent evidence that the convict is beyond reform and rehabilitation. It is submitted that the socio-economic conditions of the convict and the circumstances under which crime is committed are equally relevant for the purpose of considering whether a death penalty is to be imposed or not. It is submitted that as the case on hand, rests on circumstantial evidence, same is also the ground not to impose capital punishment, of death.

13. In support of his argument, learned counsel for the appellant has relied on the three Judge Bench Judgment of this Court, in the case of Kalu Khan v. State of Rajasthan6, wherein the accused was charged for offence of abduction, rape and murder of 4 year old girl child, death sentence was commuted to life imprisonment. Paragraphs 32 and 33 of the said judgment reads as under:

“32. In our considered view, in the impugned judgment and order, the High Court has rightly noticed that life and death are acts of the divine and the divine’s authority has been delegated to the human courts of law to be only exercised in exceptional circumstances with utmost caution. Further, that the first and foremost effort of the Court should be to continue the life till its natural end and the delegated divine authority should be exercised only after arriving at a conclusion that no other punishment but for death will serve the ends of justice. We have critically appreciated the entire evidence in its minutest detail and are of the considered opinion that the present case does not warrant award of the extreme sentence of death to the appellant-accused and the sentence of life imprisonment would be adequate and meet the ends of justice. We are of the opinion that the four main objectives which the State intends to achieve, namely, deterrence, prevention, retribution and reformation can be achieved by sentencing the appellant-accused for life. 33. Before parting, we would reiterate the sentiment reflected in the following lines by this Court in Shailesh Jasvantbhai case [Shailesh Jasvantbhai v. State of Gujarat, (2006) 2 SCC 359 : (2006) 1 SCC (Cri) 499] : (SCC pp. 361-62, para 7)

“7. … Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of ‘order’ should meet the challenges confronting the society. Friedman in his Law in a Changing Society stated that: ‘State of criminal law continues to be – as it should be – a decisive reflection of social consciousness of society.’ Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be.”

14. In the case of Lehna v. State of Haryana7,it was held that the special reasons for awarding the death sentence must be such that compel the court to conclude that it is not possible to reform and rehabilitate the offender. Paragraph 14 of the said judgment reads as under: “……Death sentence is ordinarily ruled out and can only be imposed for “special reasons”, as provided in Section 354(3). There is another provision in the Code which also uses the significant expression “special reason”. It is Section 361. Section 360 of the 1973 Code re-enacts, in substance, Section 562 of the Criminal Procedure Code, 1898, (in short “the old Code”). Section 361 which is a new provision in the Code makes it mandatory for the court to record “special reasons” for not applying the provisions of Section 360. Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever itis possible to do so and to state “special reasons” if it does not do so.

In the context of Section 360, the “special reasons” contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the statute-book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors.”

15. Learned counsel for the appellant has also relied on the three Judge Bench Judgment of this Court, in the case of Sunil v. State of Madhya Pradesh8,wherein the accused, aged about 25 years at the relevant time, was charged for offence of rape and murder of 4 year old child, death sentence was commuted to that of life imprisonment. In the said judgment, this Court has held that one of the compelling/mitigating circumstances that must be acknowledged in favour of the appellant is his young age at which he had committed the crime and further that the accused can be reformed and rehabilitated, are the other circumstances which could not but have been ignored by courts below.

16. Reliance is also placed by learned counsel for the appellant, on the three Judge Bench Judgment of this Court, in the case of Rajendra Pralhaderao Wasnik v. State of Maharashtra9, where accused was found guilty of rape and murder of 3 year old child, death sentence was substituted by life imprisonment, with a rider that the convict shall not be released from custody for the rest of his normal life.

17. The aforesaid three judgments relied on by the learned counsel for the appellant, supports the case of the appellant, when we consider to balance the aggravating and mitigating circumstances of this case on hand.

18. From the deposition of PW-9, it is clear that he is a fruit vendor, residing in Nutan Vasahat area, Jalna and the appellant also resides in the same lane. Further, it is also clear from his deposition that accused was under influence of liquor, on the day of occurrence of crime. As such, it is clear that on the day of occurrence, he was under influence of liquor and he is aged about 25 years and he had no previous history of any crimes and in absence of any evidence from the side of the prosecution to show that he cannot be reformed and rehabilitated to bring in to the main stream of the society, the judgments relied on by learned counsel for the appellant, fully support the case of the appellant, to modify the sentence.

19. In the case of Machhi Singh and Ors. v. State of Punjab3,this Court has confirmed that the death sentence to Machhi Singh and two others, mainly by recording a finding that it was a cold-blooded, calculated and gruesome murders, as a reprisal in a family feud, in which, 17 helpless, defenceless, innocent men, women and children were gunned down, as such, same can be termed as “rarest of rare” case. In the case on hand, it cannot be said to be a preplanned and pre-meditated one. To record a finding that a particular crime committed is a pre-planned and pre-meditated one, something more is required of planning to commit a murder on a day earlier to the date of occurrence. In the case on hand, where it is clear from the evidence on-record that the appellant was under influence of liquor and committed the offence, cannot be termed as a pre-planned one, to count the same as an aggravating circumstance, for balancing aggravating and mitigating circumstances.

20. In the case of Sandesh v. State of Maharashtra10, this Court, once again, acknowledged the principle that it is for the prosecution to lead evidence, to show that there is no possibility that the convict cannot be reformed. Similarly, in Mohinder Singh v. State of Punjab11,it was held in Paragraph 23 of the judgment as under: “……As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second aspect to the “rarest of rare” doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme.”

21. In the case of Sushil Sharma v. State (NCT of Delhi)12,this Court acknowledged that among various factors, one of the factors required to be taken into consideration, for awarding or not awarding capital punishment, is the possibility of reformation and rehabilitation of the convict. This acknowledgment was made in paragraph 103 of the judgment, which reads as under:

“103. In the nature of things, there can be no hard-and-fast rules which the court can follow while considering whether an accused should be awarded death sentence or not. The core of a criminal case is its facts and, the facts differ from case to case. Therefore, the various factors like the age of the criminal, his social status, his background, whether he is a confirmed criminal or not, whether he had any antecedents, whether there is any possibility of his reformation and rehabilitation or whether it is a case where the reformation is impossible and the accused is likely to revert to such crimes in future and become a threat to the society are factors which the criminal court will have to examine independently in each case. Decision whether to impose death penalty or not must be taken in the light of guiding principles laid down in several authoritative pronouncements of this Court in the facts and attendant circumstances of each case.”

22. In the case of Amit v. State of Maharashtra13, this Court adverted to the prior history of the accused and noted that there is no record of any previous heinous crime and also there is no evidence that he would be a danger to the society if the death penalty is not awarded to him. Paragraph 10 of the said judgment reads as under:

“10. The next question is of the sentence. Considering that the appellant is a young man, at the time of the incident his age was about 20 years; he was a student; there is no record of any previous heinous crime and also there is no evidence that he will be a danger to the society, if the death penalty is not awarded. Though the offence committed by the appellant deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstances of the case, we do not think that the case falls in the category of rarest of the rare cases…….”

23. In the case of Surendra Pal Shivbalakpal v. State of Gujarat14, this Court has held that the involvement in any previous criminal case by the accused, was considered to be a factor, to be taken into consideration, for the purpose of awarding death sentence. Paragraph 13 of the said judgment reads as under:

“13. The next question that arises for consideration is whether this is a “rarest of rare case”; we do not think that this is a “rarest of rare case” in which death penalty should be imposed on the appellant. The appellant was aged 36 years at the time of the occurrence and there is no evidence that the appellant had been involved in any other criminal case previously and the appellant was a migrant labourer from U.P. and was living in impecunious circumstances and it cannot be said that he would be a menace to society in future and no materials are placed before us to draw such a conclusion. We do not think that the death penalty was warranted in this case. We confirm conviction of the appellant on all the counts, but the sentence of death penalty imposed on him for the offence under Section 302 IPC is commuted to life imprisonment.”

24. Further, this case on hand, rests solely on the circumstantial evidence.

25. In the case of Bishnu Prasad Sinha v. State of Assam15,this Court has held that ordinarily, death penalty would not be awarded, if the guilt of the accused is proved by circumstantial evidence, coupled with some other factors that are advantageous to the convict. Paragraph 55 of the said judgment reads as under:

“55. The question which remains is as to what punishment should be awarded. Ordinarily, this Court, having regard to the nature of the offence, would not have differed with the opinion of the learned Sessions Judge as also the High Court in this behalf, but it must be borne in mind that the appellants are convicted only on the basis of the circumstantial evidence. There are authorities for the proposition that if the evidence is proved by circumstantial evidence, ordinarily, death penalty would not be awarded. Moreover, Appellant 1 showed his remorse and repentance even in his statement under Section 313 of the Code of Criminal Procedure. He accepted his guilt.”

26. Further, in the case of Aloke Nath Dutta v. State of West Bengal16,the principle that death penalty should ordinarily not to be awarded, in a case arising out of circumstantial evidence, was broadly accepted with the rider that there should be some “special reason” for awarding death penalty. Paragraph 174 of the said judgment reads as under:

“174. There are some precedents of this Court e.g. Sahdeo v. State of U.P.[(2004) 10 SCC 682] and Sk. Ishaque v. State of Bihar[(1995) 3 SCC 392] which are authorities for the proposition that if the offence is proved by circumstantial evidence ordinarily death penalty should not be awarded. We think we should follow the said precedents instead and, thus, in place of awarding the death penalty, impose the sentence of rigorous imprisonment for life as against Aloke Nath. Furthermore we do not find any special reason for awarding death penalty which is imperative.”

27. In the case of Swamy Shraddananda v. State of Karnataka17,this Court has held that the convictions based on seemingly conclusive circumstantial evidence, should not be presumed to be fool-proof. Paragraph 87 of the said judgment reads as under:

“87. It has been a fundamental point in numerous studies in the field of death penalty jurisprudence that cases where the sole basis of conviction is circumstantial evidence, have far greater chances of turning out to be wrongful convictions, later on, in comparison to ones which are based on fitter sources of proof. Convictions based on seemingly conclusive circumstantial evidence should not be presumed as foolproof incidences and the fact that the same are based on circumstantial evidence must be a definite factor at the sentencing stage deliberations, considering that capital punishment is unique in its total irrevocability. Any characteristic of trial, such as conviction solely resting on circumstantial evidence, which contributes to the uncertainty in the culpability calculus, must attract negative attention while deciding maximum penalty for murder.”

28. From the above judgments referred, it is clear that in a case of conviction based on circumstantial evidence, ordinarily the extreme punishment of death penalty should not be imposed. In a given case, guilt of the accused is proved beyond reasonable doubt, by establishing chain of circumstances, resulting in conviction, such cases, by considering balancing aspects of aggravating and mitigating circumstances, in appropriate cases, death penalty can be imposed. But, at the same time ordinarily, if no special reasons exist, in a case of conviction based on circumstantial evidence, death penalty should not be imposed. In this case on hand, the conviction of the appellant is mainly based on circumstantial evidence. On this ground also, I am of the view that the death sentence, imposed on him, is to be modified.

29. From the materials placed on record, it is clear that accused is a permanent resident of Indira Nagar, Jalna. The father of the deceased, PW-9, himself has stated that he is a fruit vendor in Nutan Vasahat area, Jalna, and accused also resides in the same lane, nearby his residence. It is also clear from the evidence of PW-9, to the East and West side of the house of the appellant, a person having buffaloes used to reside at the relevant time. From such evidence onrecord, it is easy to assess the socio-economic condition of the appellant and it can certainly be said that he is a person below poverty line.

30. In a judgment of this Court, in the case of Sunil Damodar Gaikwad v. State of Maharashtra18,while holding that court must not only look at the crime but also offender and to give due consideration to circumstances of offender, has further held that in imposing penalty, socio-economic condition can be considered as one of the mitigating factors, in addition to those indicated in Bachan Singh2 and MachhiSingh3. Para 20 of the said judgment reads as under:

“20. When there are binding decisions, judicial comity expects and requires the same to be followed. Judicial comity is an integral part of judicial discipline and judicial discipline the cornerstone of judicial integrity. No doubt, in case there are newer dimensions not in conflict with the ratio of the larger Bench decisions or where there is anything to be added to and explained, it is always permissible to introduce the same. Poverty, socioeconomic, psychic compulsions, undeserved adversities in life are thus some of the mitigating factors to be considered, in addition to those indicated in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] and Machhi Singh [Machhi Singh v. State of Punjab, (1983) 3 SCC 470 : 1983 SCC (Cri) 681] cases. Thus, we are bound to analyse the facts in the light of the aggravating and mitigating factors indicated in the binding decisions which have influenced the commission of the crime, the criminal, and his circumstances, while considering the sentence.

31. In view of the aforesaid judgments of this Court and evidence on record in this case, which establishes the socio-economic condition of the appellant, as a person below poverty line, can also be considered as one of the mitigating factors, while balancing the aggravating and mitigating factors.

32. I am conscious of recent amendments carried out to the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’), by way of Protection of Children from Sexual Offences Amendment Act, 2019. By virtue of the said amendments, taking note of increasing trend of crimes against the children, minimum sentence is increased for various offences and for offence under Section 6 of the Act i.e aggravated penetrative sexual assault, minimum imprisonment, which shall not be less than 20 years, which may extend to natural life or penalty of death. Prior to the amendments made by recent amending Act of 2019, for offence under POCSO, death penalty was not provided. By virtue of the amendments made in appropriate cases, for offences falling under provisions of the POCSO Act alone, a penalty of death sentence can be imposed. In the case on hand, the offence was committed prior to coming into force, of the Act.

33. Even then, we cannot forget the legislative intent which resulted in amendments to POCSO, while dealing with the offences against the children. At the same time, even for imposing the death sentence, for cases arising out of the provisions under POCSO Act, 2012, it is the duty of the courts to balance the aggravating and mitigating circumstances. To balance such aspects, the guidelines in Bachan Singh v. State of Punjab2 and further reiterated in the case of Machhi Singh and Ors. v. State of Punjab3 and in the case of Sushil Murmu v. State of Jharkhand19,will continue to apply. Further, repeatedly, it is said by this Court, in the various judgments that the aggravating and mitigating factors are to be considered with reference to the facts of each case and there cannot be any hard and fast rule for balancing such aspects.

34. I am clear in my mind that in this case on hand, the mitigating circumstances of the appellant, dominate over the aggravating circumstances, to modify the death sentence to that of life imprisonment. Even as per the case of prosecution, the appellant was under influence of liquor at the time of committing the offence, and there is no evidence on record from the side of prosecution, to show that there is no possibility of reformation and rehabilitation of the appellant. Further, age of the appellant was 25 years at the relevant time and conviction is solely based on circumstantial evidence. Taking all such aspects into consideration, the death penalty imposed on the appellant is to be modified to that of life imprisonment, for the offence under Section 302 IPC.

35. Long line of cases decided by this Court are cited by learned counsel for the appellant, in similar set of facts and circumstances, this Court has modified the death sentence to that of imprisonment for life, without any remission. Few recent decisions of this Court are:

36. In a three Judge Bench Judgments of this Court, in the case of Nand Kishore v. State of Madhya Pradesh20dated 18.01.2019 and in the case of Raju Jagdish Paswan v State of Maharashtra21dated 17.01.2019, for which I am party, in similar circumstances, this Court has modified the death penalty to that of life imprisonment, without any remission.

37. Further, in a recent three Judge Bench Judgment of this Court, in the case of Vijay Raikwar v. State of Madhya Pradesh22, where there was an offence involving rape and murder of a girl aged about 71/2 years, while confirming the conviction of the offences under Section 376(2)(f) and Section 201 IPC and also under Sections 5(i), 5(m) and 5(r) read with Section 6 of the POCSO Act, this Court commuted the death sentence to life imprisonment.

38. In the aforesaid judgments, in a similar set of facts, this Court has modified the sentence to life imprisonment. In this case also there is no previous crime record for the appellant. The above referred judgment, supports the case of the appellant.

39. For the aforesaid reasons, these appeals are allowed in part. While confirming the conviction recorded by the Trial Court, death sentence imposed on the appellant is modified to that of life imprisonment i.e to suffer for life till his natural death, without any remission/commutation.

J [R.Subhash Reddy]

 

New Delhi;

October 03, 2019


1″Y-STR analysis for detection and objective confirmation of child sexual abuse”, authored by Frederick C. Delfin – Bernadette J. Madrid – Merle P. Tan – Maria Corazon A. De Ungria.

2″Forensic DNA Evidence: Science and the Law”, authored by Justice Ming W. Chin, Michael Chamberlain, A,y Roja, Lance Gima

3 1973(1) SCC 20

4 1980(2) SCC 684

5 1983(3) SCC 470

6 (2015) 16 SCC 492

7 (2002) 3 SCC 76

8 (2017) 4 SCC 393

9 Review Petition (Criminal) Nos. 306-307 of 2013

10 (2013) 2 SCC 479

11 (2013) 3 SCC 294

12 (2014) 4 SCC 317

13 (2003) 8 SCC 93

14 2005(3) SCC 127

15 (2007) 11 SCC 467

16 (2007)12 SCC 230

17 (2007) 12 SCC 288

18 (2014) 1 SCC 129

19 (2004) 2 SCC 338

20 Criminal Appeal No. 94 of 2019

21 Criminal Appeal No. 88-89/2019

22 (2019) 4 SCC 210


 

Supreme court Direction to the police on receipt of Rape Case

25-04-2014 : There is a pressing need to introduce drastic amendments into the Code of Criminal Procedure in the nature of fast tract procedure for Fast Track Courts when we considered just and appropriate to issue notice and called upon the Union of India to file its response as to why it should not take initiative and sincere steps for introducing necessary amendment into the Code of Criminal Procedure, 1973 involving trial for the charge of ‘Rape’ by directing that all the witnesses who are examined in relation to the offence and incident of rape cases should be straightway produced preferably before the Lady Judicial Magistrate for recording their statement to be kept in sealed cover and thereafter the same be treated as evidence at the stage of trial by producing the same in record in accordance with law which may be put to test by subjecting it to cross-examination.

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If a married woman raped, internal or external injuries may not be found

Admittedly the prosecutrix was already a married lady and, therefore, it was not necessary that some external or internal injuries should have been found on her person.

No doubt, it is true that doctor could not give any definite opinion with regard to commission of offence, but, it was not the case of the appellants that they had not committed the rape but they had taken a plea of consensual SEX with the prosecutrix which has not been believed by the two courts below.Continue Reading

Corroboration of testimony of prosecutrix as a condition for judicial reliance is not a requirement of law in Rape trial

A conviction can be founded on the testimony of prosecutrix alone unless there are compelling reasons for seeking corroboration. It is further held that her evidence is more reliable than that of an injured witness.

AIR 2005 SC 3570 : (2005) 3 Suppl. SCR 703 : (2005) 8 SCC 122 : JT 2005 (12) SC 150 : (2005) 7 SCALE 663 : (2005) CriLJ SC 4375Continue Reading

A false allegation of rape can cause distress, humiliation and damage to the accused

It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case.

Held: the offence of rape does not stand proved.

Evidence: It was also argued that the material witness, namely, milkman Mahavir, who informed the Aunt about the victim lying unconscious in front of the house of one Pappu, was not examined, which is fatal to the case of the prosecution.

Even Pappu before whose house the victim was allegedly lying unconscious was also not examined.

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Govindaswamy v. State of Kerala [ ALL SC 2016 SEPTEMBER]

KEYWORDS:-RAPE AND MURDER-INTENTION-VICTIM NOT DIED INSTANTLY

DATE: September 15, 2016

  • To hold that the accused is liable under Section 302 IPC what is required is an intention to cause death or knowledge that the act of the accused is likely to cause death.
  • The intention of the accused in keeping the deceased in a supine position, according to P.W. 64, was for the purposes of the sexual assault. The requisite knowledge that in the circumstances such an act may cause death, also, cannot be attributed to the accused, inasmuch as, the evidence of P.W. 64 itself is to the effect that such knowledge and information is, in fact, parted with in the course of training of medical and para-medical staff. The fact that the deceased survived for a couple of days after the incident and eventually died in Hospital would also clearly militate against any intention of the accused to cause death by the act of keeping the deceased in a supine position.

ACTS: S 372 and 376 of IPC

SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1584-1585 OF 2014

Bench: Ranjan Gogoi, Prafulla C. Pant, Uday Umesh Lalit

Govindaswamy v. State of Kerala

J U D G M E N T

RANJAN GOGOI,J.

1. The accused appellant has been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and sentenced to death. He has additionally been convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for life. Besides, he has been found guilty of the offences punishable under Section 394 read with Section 397 IPC as well as under Section 447 of the IPC for which he has been separately sentenced to undergo rigorous imprisonment for seven years and three months respectively. The conviction of the accused appellant and the sentences imposed have been confirmed in appeal by the High Court. Aggrieved, the present appeals have been filed.

2. The case of the prosecution in short is that the deceased/victim girl, aged about 23 years, was working in Ernakulam and was engaged to one Anoop (P.W.76), who also happened to be employed in Ernakulam. Their betrothal ceremony was to be in the house of the deceased at Shornur on 2nd February, 2011. P.W.76 along with his family members were scheduled to visit the house of the deceased on that day. Accordingly, on 1st February, 2011 the deceased boarded the Ernakulam-Shornur Passenger Train at about 5.30 p.m. from Ernakulam Town North Railway Station to go to her home at Shornur. The deceased had boarded the ladies division of the last compartment. There were other passengers in the ladies division of the compartment along with the deceased. When the train reached Mulloorkara, all other lady passengers in the ladies division of the compartment had alighted and, therefore, the deceased also got down along with them and hurriedly entered the ladies coach attached just in front of the last compartment. The train reached Vallathol Nagar Railway Station, where it halted for some time.

3. According to the prosecution, the accused appellant, who is a habitual offender, noticed that the deceased was alone in the ladies compartment. As soon as the train had left Vallathol Nagar Railway Station and moved towards Shornur the accused entered the ladies compartment. The prosecution alleges that inside the compartment the accused had assaulted the deceased and, in fact, repeatedly hit her head on the walls of the compartment. The prosecution has further alleged that the deceased was crying and screaming. It is the case of the prosecution that the victim was dropped/pushed by the accused from the running train to the track and that the side of her face hit on the crossover of the railway line. The accused appellant also jumped down from the other side of the running train and after lifting the victim to another place by the side of the track he sexually assaulted her. Thereafter he ransacked her belongings and went away from the place with her mobile phone.

4. It is the further case of the prosecution that P.W. 4 – Tomy Devassia and P.W. 40 – Abdul Shukkur were also traveling in the general compartment attached in front of the ladies compartment. According to the prosecution, the said witnesses heard the cries of the deceased. P.W. 4 wanted to pull the alarm chain to stop the train but he was dissuaded by a middle-aged man who was standing at the door of the compartment by saying that the girl had jumped out from the train and escaped and that in these circumstances he should not take the matter any further as the same may drag all of them to Court. However, when the train reached Shornur Railway Station within a span of 10 minutes, P.W.4 and P.W.40 rushed to P.W.34 – Joby Skariya, the guard of the train and complained about the incident which triggered a search, both, for the deceased and the accused. Eventually, the deceased was found in a badly injured condition lying by the side of the railway track and the accused was also apprehended soon thereafter in circumstances which need not detain the Court. According to the prosecution, the deceased was removed to the local Hospital whereafter she was taken to the Medical College Hospital, Thrissur where she succumbed to her injuries on 6th February, 2011. It is in these circumstances that the accused was charged with the commission of crimes in question for which he has been found guilty and sentenced, as already noticed.

5. A large number of witnesses (83 in all) had been examined by the prosecution in support of its case and over a hundred documents were exhibited. For the present it would suffice to notice the evidence of P.Ws.4, 40, 64 and 70. The Postmortem report (Exhibit P-69) and D.N.A. Profile (Exhibit P-2) would also require a specific notice and the relevant part thereof may also require to be reproduced.

6. P.W.4 and P.W.40, as already mentioned, were traveling in the general compartment which was attached just in front of the ladies compartment. According to both the witnesses, they heard the sounds of a woman crying and wailing coming from the ladies compartment and though P.W. 4 wanted to pull the alarm chain of the train he was dissuaded by a middle-aged man who reported to them that the issue should not be carried any further as the woman had alighted from the train and had made good her escape. According to P.W. 4 and P.W.40, they brought the matter to the attention of P.W.34, the guard of the train as soon as the train had reached Shornur railway station. The recovery of the deceased and the apprehension of the accused followed thereafter.

7. P.W. 64 – Dr. Sherly Vasu who was then working as Professor and Head of Department of Forensic Medicine, M.C.H. Thrissur conducted the postmortem examination of the deceased with the assistance of five other doctors (who were also examined). According to P.W. 64, he had noted 24 antemortem injuries on the body of the deceased, details of which have been mentioned by him in the postmortem report (Exhibit P-69). While it will not be necessary to notice the details of each of the injuries sustained/suffered by the deceased, the evidence of P.W. 64 so far as the injury Nos.1 and 2 is concerned, being vital, would require specific notice and, therefore, is extracted below:

“Injury No.1 is sufficient to render her dazed and insensitive. It is capable of creating dazeness to head and rendering incapable to respond. These wounds may not be of the nature of exclusive cause of death. This injury will be caused only if the head is forcefully hit to backward and forward against a hard flat surface. Need not become total unconscious. But can do nothing. The injury described in No.1 is caused by hitting 4-5 times against a flat surface holding the hair from back with a right hand. These injuries are photographed in detail in Ext. P.70. CD. This is my independent findings. I have also checked the matters listed in the requisition from an independent evaluation what I understand is that after hitting the head on a flat and hard substance several times and rendering insensitive dropped. (Q) If hit against the wall (of train) holding hair from behind it will occur? (A) Yes. It will occur so.

Injury No.2. It is the injury sustained from beneath the left eye upto chin bone. Further below and on lips. There are fractures on maxilla and mandible. About 13 teeth have gone severed. The left cheek bone is pulverized. A vertically long mark of rubbing chin bone and cheek is seen. So it is added in remarks that fall on to smooth surface of a rail and gliding forward (upward) (gliding). The gliding mark on lower chin is seen 5 cm. (Gliding movement) In post mortem request it is pushed down from running train. So though it was a running train it had only negligible speed. In inflicting this injury the speed of the train had only a negligible role. The speed ignorable. Since she was rendered insensitive as a result of injury No.1 in the absence of natural reflex the face had to bear the full force of the descent, it is seen. In case she was not dazed and had alert reflexes and fallen in such a condition she would have moved hands forward and the hands would have showed the force of the fall to some extent. There was no injuries of fall on elbows, wrists and inner boarders of fore arms. There was no reflexes in this fall. No.2 are injuries that may have been caused by fall of a person having the weight of this person (42 kg.) from a height of 5 to 8 feet. These injuries will be sustained if this portion (left cheek bone crosswise) hits against train tract. I have visited this scene on 9-2-2011 with C.I. Chelakkara.

These 5 tracks were seen. They are seen as intercoin (cross). So understood that it can happen when fallen from a moving train into the next near cross tract. Usually two tracks go Parallel. This is not such a place. Left cheek bone has been thoroughly pulverized. The bone was pulverized as there are air cells inside maxilla. By the force of the fall as there are air cells inside maxilla.

8. The opinion of P.W. 64 as to the cause of death mentioned in the postmortem report is as follows:

“The decedent had died due to blunt injuries sustained to head as a result of blunt impact and fall and their complications including aspiration of blood into air passages (during unprotected unconscious state following head trauma) resulting in anoxic brain damage. She also showed injuries as a result of assault and forceful sexual intercourse. She had features of multiple organ disfunction at the time of death.

9. P.W.64 in his evidence had also explained that the aspiration of blood into the air passage could have been due to the victim being kept in a supine position, probably, for sexual intercourse which may have resulted in anoxic brain damage.

10. There are other parts of the postmortem report and the evidence of P.W. 64 which would also require a specific notice insofar as the offence under Section 376 IPC alleged against the accused appellant is concerned. The relevant part of the postmortem report is extracted below: “Pelvic Structures: Urinary bladder was empty. Uterus and its appendages appeared normal, the cavity was empty; endometrium showed congestion and the cervical os was circular. The right ovary showed polycystic changes. Spine was intact.

Vaginal introitus and wall showed contusion all around, most prominent just behind urethral meatus. Hymen showed a recent complete tear at about 5’O clock position and partial recent tear at about 7’O clock positions (as suggested by edema and hyperemia of edges) and a natural indentation at 1’O clock position.

(Remark – recent sexual intercourse)”

11. The evidence of P.W. 70 – Dr. R. Sreekumar, Joint Director (Research) holding charge of Assistant Director, D.N.A. in the Forensic Science Laboratory, Trivandrum and the report of examination (Exhibit P-2) may now be noticed.

12. P.W. 70 in his deposition has stated that after examination following results were recorded at pages No.19 and 20 of Exhibit P-2:

Item 1(a) and 2(b) contain the vagina swabs of the victim whereas Item 2(a) is vaginal smear collected from the victim. Item 3(a) is a cut open garment (M.O.1) and Item 18 is a torn lunky (M.O.5). Item No.8 is the blood sample of the accused.

According to P.W. 70, as per the DNA typing the seminal stains on Item No. 1(1), 2(a), 2(b), 3(a) and 18 belonged to the accused to whom the blood sample in Item No.8 belongs.

Furthermore, from the evidence of P.W. 70 it is evident that the blood of the victim [Item 1(b)] was found in the clothing of the accused i.e. pants [Item No.13 (M.O.8)], underwear [Item No.14 (M.O.21)]; Shirt [Item No.17 (M.O.6)].

13. So far as the offence under Section 376 IPC is concerned, from a consideration of the postmortem report (Exhibit P-69) D.N.A. Profile (Exhibit P-2) and the evidence of P.W. 64 and P.W. 70, there can be no manner of doubt that it is the accused appellant who had committed the said offence. The D.N.A. profile, extracted above, clinches the issue and makes the liability of the accused explicit leaving no scope for any doubt or debate in the matter. We, therefore, will find no difficulty in confirming the conviction of the accused under Section 376 IPC. Having regard to the fact that the said offence was committed on the deceased who had already suffered extreme injuries on her body, we are of the view that not only the offence under Section 376 IPC was committed by the accused, the same was so committed in a most brutal and grotesque manner which would justify the imposition of life sentence as awarded by the learned trial Court and confirmed by the High Court.

14. Insofar as the offence under Section 394 read with Section 397 IPC is concerned, there is also adequate evidence on record to show that the accused after committing the offence had taken away the mobile phone of the deceased and had, in fact, sold the same to P.W.7 – Manikyan who again sold the same to P.W.10 – Baby Varghese from whom the mobile phone was seized by the Police.

15. This will bring the Court to a consideration of the culpability of the accused for the offence punishable under Section 302 IPC and if the accused is to be held so liable what would be the appropriate punishment that should be awarded to him. The evidence of P.W. 64, particularly, with reference to the injury No. 1 and 2, details of which have been extracted above, would go to show that the death of the deceased was occasioned by a combination of injury no.1 and 2, and complications arising therefrom including aspiration of blood into the air passages resulting in anoxic brain damage. The same, in the opinion of the doctor (P.W.64), had occurred due to the fact that the deceased was kept in a supine position for the purpose of sexual assault. In a situation where death had been certified and accepted to have occurred on account of injury Nos. 1 and 2 and aspiration of blood into the air passages on account of the position in which the deceased was kept, the first vital fact that would require consideration is whether the accused is responsible for injury No.2 which apparently was occasioned by the fall of the deceased from the running train. Before dealing with Injury No.2 we would like to observe that we are of the opinion that the liability of the accused for Injury No.1 would not require a redetermination in view of the evidence of P.W.4 and P.W.40 as to what had happened in the ladies compartment coupled with the evidence of P.W.64 and the Postmortem report (Exhibit P-69). However, so far as Injury No.2 is concerned, unless the fall from the train can be ascribed to the accused on the basis of the cogent and reliable evidence, meaning thereby, that the accused had pushed the deceased out of the train and the possibility of the deceased herself jumping out of train is ruled out, the liability of the accused for the said injury may not necessary follow.

16. In this regard, the learned counsel for the State has referred to injury No.1 sustained by the deceased, as deposed to by P.W.64, and has contended that in view of the impaired mental reflexes that the deceased had at that point of time it may not have been possible for her to take a decision to jump out of the train. While the said proposition need not necessarily be incorrect what cannot also be ignored is the evidence of P.W. 4 and P.W. 40 in this regard which is to the effect that they were told by the middle aged man, standing at the door of the compartment, that the girl had jumped out of the train and had made good her escape. The circumstances appearing against the accused has to be weighed against the oral evidence on record and the conclusion that would follow must necessarily be the only possible conclusion admitting of no other possibility. Such a conclusion to the exclusion of any other, in our considered view, cannot be reached in the light of the facts noted above.

17. Keeping of the deceased in a supine position for commission of sexual assault has been deposed to by P.W. 64 as having a bearing on the cause of death of the deceased. However, to hold that the accused is liable under Section 302 IPC what is required is an intention to cause death or knowledge that the act of the accused is likely to cause death. The intention of the accused in keeping the deceased in a supine position, according to P.W. 64, was for the purposes of the sexual assault. The requisite knowledge that in the circumstances such an act may cause death, also, cannot be attributed to the accused, inasmuch as, the evidence of P.W. 64 itself is to the effect that such knowledge and information is, in fact, parted with in the course of training of medical and para-medical staff. The fact that the deceased survived for a couple of days after the incident and eventually died in Hospital would also clearly militate against any intention of the accused to cause death by the act of keeping the deceased in a supine position. Therefore, in the totality of the facts discussed above, the accused cannot be held liable for injury no.2. Similarly, in keeping the deceased in a supine position, intention to cause death or knowledge that such act may cause death, cannot be attributed to the accused. We are, accordingly, of the view that the offence under Section 302 IPC cannot be held to be made out against the accused so as to make him liable therefor. Rather, we are of the view that the acts of assault, etc. attributable to the accused would more appropriately attract the offence under Section 325 IPC. We accordingly find the accused appellant guilty of the said offence and sentence him to undergo rigorous imprisonment for seven years for commission of the same.

18. Consequently and in the light of the above discussions, we partially allow the appeals filed by the accused appellant. While the conviction under Section 376 IPC, Section 394 read with Section 397 IPC and Section 447 IPC and the sentences imposed for commission of the said offences are maintained, the conviction under Section 302 IPC is set aside and altered to one under Section 325 IPC. The sentence of death for commission of offence under Section 302 IPC is set aside and instead the accused is sentenced to undergo rigorous imprisonment for seven years. All the sentences imposed shall run concurrently. The order of the learned Trial Court and the High Court is accordingly modified.

RANJAN GOGOI

PRAFULLA C. PANT

UDAY UMESH LALIT

NEW DELHI

SEPTEMBER 15, 2016


 Alternative citation :Govindaswamy v. State of Kerala, (2016) 16 SCC 295, 15-09-2016

Soumya Rape Case

 

Prashant Bharti vs State Of NCT Of Delhi [ALL SC 2013 JANUARY]

KEYWORDS:-False rape charge-

c

DATE:- 23 January, 2013

ACTS:-Section 376 IPC

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEAL NO. 175 OF 2013
(Arising out of SLP (Criminal) No. 1800 OF 2009)

Prashant Bharti vs State Of Nct Of Delhi

Bench: D.K. Jain, Jagdish Singh Khehar

J U D G M E N T

JAGDISH SINGH KHEHAR, J.

1. Leave granted.

2. On 16.2.2007, Priya (hereinafter referred to as, the complainant/prosecuterix), aged 21 years, a resident of Tughlakabad Extension, New Delhi, made a phone call to the Police Control Room (hereinafter referred to as, the PCR). Police personnel immediately reached her residence. She made a statement to the police, leading to the registration of first information report no. 47 of 2007 at Police Station Lodhi Colony, New Delhi, under Sections 328 and 354 of the Indian Penal Code. In her statement to the police, the complainant/prosecuterix alleged, that the appellant herein Prashant Bharti (hereinafter referred to as, the appellant-accused) was known to her for about four months. The appellant-accused was a resident of Lodhi Colony, New Delhi. It was alleged that on the preceding day i.e., on 15.2.2007, the appellant-accused had made a phone call to the complainant/prosecuterix, at about 8.45 pm, and asked her to meet him at Lodhi Colony, New Delhi. When she – reached Lodhi Colony, he drove her around in his car. He also offered the complainant/prosecuterix a cold drink (Pepsi) allegedly containing a poisonous/intoxicating substance. According to the complainant/prosecuterix she felt inebriated after taking the cold drink. In her aforesaid state, the appellant-accused started misbehaving with her. He also touched her breasts. Inspite of the complainant/prosecuterix stopping him, it was alleged, that the appellant-accused continued to misbehave with her. The complainant/prosecuterix then got the car stopped, and hired an auto-rickshaw to return to her residence. In her statement, the complainant/prosecuterix requested the police to take legal action against the appellant-accused.

3. Immediately after recording the statement of Priya (the complainant/prosecuterix) on 16.2.2007, the police took her to the All India Institute of Medical Sciences (hereinafter referred to as, the AIIMS), New Delhi. She was medically examined at 1.44 pm. It is sufficient to record herein, that as per the medical report prepared at the AIIMS, there was no evidence of poisoning.

4. Based on the statement made by the complainant/prosecuterix, the appellant-accused Prashant Bharti was arrested at 6 pm, on the same day on which the complainant recorded her statement, i.e., on 16.2.2007, a day after the occurrence.

5. After a lapse of five further days, on 21.2.2007, at 8.20 am, the complainant/prosecuterix made a supplementary statement to the police. On this occasion, she alleged, that Prashant Bharti, the appellant-accused, had been having physical relations with her in his house, on the assurance

that he would marry her. It was alleged by the complainant/prosecuterix, that the appellant-accused had subsequently refused to marry her. With reference to the incident of 15.2.2007, she alleged, that she had been administered some intoxicant in a cold drink (Pepsi) by Prashant Bharti, so as to enable him to have a physical relationship with her. But, it was alleged, that she did not succumb to his said desire on 15.2.2007. The complainant/prosecuterix further alleged, that after she returned to her residence on 15.2.2007, she did not feel well and accordingly, had gone to sleep. She therefore explained, why she had made her earlier complaint, on the following day of the incident. In her supplementary statement, she requested the police to take legal action against Prashant Bharti, the appellant-accused, for having physical relations with her (on 23.12.2006, 25.12.2006 and 1.1.2007) at his residence, on the basis of a false promise to marry her.

6. Immediately after recording her supplementary statement, the complainant/prosecuterix was taken to the AIIMS. She was medically examined at the AIIMS at 12 noon, on 21.2.2007. In the medical report prepared at the AIIMS after her examination, it was recorded, that she had no external injuries, and that her hymen was not intact. It was pointed out, that a vaginal smear was not taken, because more than a month had elapsed from the date of the alleged intercourse(s). Likewise, it was pointed out, that her clothes were not sent for forensic examination, because she had changed the clothes worn by her at the time of the alleged occurrence(s). In other words, the assertions made by the accused could not be tested scientifically, because the complainant was being medically examined, after a substantial delay.

7. Based on the supplementary statement of Priya (the complainant/prosecuterix) recorded on 21.2.2007, the offence under Section 376 was added to the case.

8. On 27.2.2007, the statement of the complainant/prosecuterix was recorded under Section 164 of the Code of Criminal Procedure by the Metropolitan Magistrate, New Delhi (in first information report no. 47 of 2007). A relevant extract of the aforesaid statement, is being reproduced below:-

“… then Prashant asked for my number and detail of address. I gave my office telephone number to him. In evening, Mr. Prashant Bharti called me and talked about loan and after some days, Prashant Bharti came to meet in my office and thereafter we became good friends and one day, Prashant Bharti told me that he loves me and wish to marry me and thereafter, we started meeting frequently and I consented for marriage.

One day, when all the family members were gone somewhere, Prashant Bharti called me to his home for party and he told me that he will marry me soon and will inform to his parents about our relationship and he made relation with me. And, whenever his home was vacant, he usually calls me up and when his parents came, I asked him to tell them about our relationship and he did not inform this and on this issue, we have fight with each other and I informed to his parents. Then his parents called Prashant about this and Prashant Bharti denied our relationship to his father and neither he wish to marry me and on that day, I was sent to my home by his parents.

After two days, Prashant Bharti called me and asked me to meet him, as he wish to tender apology and when I was going to reach my home from office, then I, through auto rickshaw, reached at Central School, Lodhi Colony, where Prashant Bharti was standing near to his Santro Car, and he met me there and he asked me that he has committed mistake and he wish to tender apology and after some – time, he took me to his car and thereafter, he told me that he is feeling thirsty and thereafter, he brought Pepsi in car and we both took the Pepsi. And, after drinking the same, I lost my conscious and thereafter, he started misbehaving with me and I asked him that why he was doing so, then he told me that, as I complained to his father, he will take revenge from me, and he forcibly misbehaved with me, and I immediately got down from the car and by Auto, I came to my house and as I was unwell, I could not lodge my complaint with police. On the next day, I called 100 number PCR and there police official, accompanies me and I informed everything to SHO Surinder Jeet and on that basis, he was arrested.”

9. By an order dated 12.3.2007, the Additional Sessions Judge, Delhi granted bail to the appellant-accused. In the aforesaid order passed on 12.3.2007, the following factual position was relied upon, to extend the benefit of bail to the appellant-accused. The appellant-accused was in Sector 37, Noida in the State of Uttar Pradesh on 15.2.2007. He was at Noida before 7.55 pm. He, thereafter, remained at different places within Noida and then at Shakarpur, Ghaziabad, Patparganj, Jorbagh etc. From 9.15 pm to 11.30 pm on 15.2.2007, he remained present at a marriage anniversary function celebrated at Rangoli Lawns at Ghaziabad, Uttar Pradesh. An affidavit to the aforesaid effect filed by the appellant-accused was found to be correct by the investigating officer, on the basis of his mobile phone call details. Verification of the mobile phone call details of the complainant/prosecuterix Priya revealed, that on 15.2.2007, no calls were made by the appellant-accused to the complainant/prosecuterix, and that, it was the complainant/prosecuterix who had made calls to him. The complainant/prosecuterix, on and around the time referred to in the complaint dated 16.2.2007, was at different places of New Delhi i.e., in Defence Colony, Greater Kailash, Andrews Ganj and finally at Tughlakabad Extension, as per the verification of the investigating officer on the basis of her mobile phone call details. Even though the complainant/prosecuterix was married to one Manoj Kumar Soni, S/o Seeta Ram Soni (as indicated in an affidavit appended to the Delhi police format for information of tenants and duly verified by the investigating officer, wherein she had described herself as married), in the complaint made to the police (on 16.2.2007 and 21.2.2007), she had suggested that she was not married. At the time when the complainant/prosecuterix alleged, that the appellant-accused had misbehaved with her and had outraged her modesty on 15.2.2007 (per her complaint dated 16.2.2007), she was actually in conversation with her friends (as per the verification made by the investigating officer on the basis of her mobile phone call details). Even though the complainant/prosecuterix had merely alleged in her complaint dated 16.2.2007, that the accused had outraged her modesty by touching her breasts, she had subsequently through a supplementary statement (on 21.2.2007), levelled further allegations against the accused of having repeatedly raped her (on 23.12.2006, 25.12.2006 and 1.1.2007), on dates preceding the first complaint.

10. On 28.6.2007, the police filed a chargesheet under Sections 328, 354 and 376 of the Indian Penal Code. In the chargesheet, it was clearly mentioned, that the police investigation, from different angles, had not yielded any positive result. However, the chargesheet was based on the statement made by the complainant/prosecuterix before the Metropolitan Magistrate, New Delhi under Section 164 of the Code of Criminal Procedure, which was found to be sufficient for the charges alleged – against the appellant-accused. A relevant extract of the chargesheet depicting the aforesaid factual position, is being reproduced below:-

“I the Inspector, tried my best from all angles to recover the intoxicating substance/Pepsi/Pepsi glass and undergarments worn at the time of the rape. But nothing could be recovered and for this reason, the blood sample of accused could not be sent to FSL. As from the investigation so far conducted, no proof could be found in support of the crime under Section 328/354 IPC and even the position of accused Prashant Bharti is not available at Lodhi Colony at the date and time as his mobile phone ill. However, prosecuterix Priya Porwal made statement on 21.2.2007 and on 27.2.2007 under Section 164 Cr.P.C. which is sufficient in support of his challan for the offence under Section 376 IPC.” (emphasis is ours)

11. Aggrieved by the first information report (bearing no. 47 of 2007) registered at the Police Station Lodhi Colony, New Delhi, the appellant-accused filed Writ Petition (Crl.) no. 1112 of 2007 before the Delhi High Court for quashing the said first information report on the ground, that the appellant-accused had been falsely implicated. The High Court, dismissed the said writ petition on 27.8.2007, without going into the merits of the controversy, by recording the following observations:-

“This Court cannot quash the FIR on the ground that FIR was false FIR. In case of a false FIR, it must be brought to its logical conclusion and Investigating Officer must give a report to that effect. In this case, if it is found that the petitioner has been falsely implicated and the complaint was false, it would be obligatory on the part of the Investigating Officer to register a case and book the prosecuterix for falsely implicating the person in an offence under Section 376 IPC.

It is a very serious matter that a prosecuterix just by making a false statement can book somebody in offence under Section 376 IPC, which is serious in nature and invites a minimum punishment of 07 years. I consider that Investigating Officer shall submit a detailed report and in case, it is that the petitioner was falsely implicated, he would take steps for booking the complainant for falsely implicating the petitioner.”

12. Interestingly, even the complainant/prosecuterix filed Writ Petition (Crl.) no. 257 of 2008 before the Delhi High Court seeking quashing of the first information report lodged by the complainant/prosecuterix herself. The High Court noticed the observations recorded in the order dated 27.8.2007 (passed in Writ Petition (Crl.) no. 1112 of 2007) and dismissed the writ petition filed by the complainant/prosecutrix.

13. On 1.12.2008, the Additional Sessions Judge, New Delhi, framed charges against the appellant-accused, by observing as under:-

“4. Considering the facts and circumstances of the case that prosecuterix has levelled specific allegations against the accused that she was given pepsi to drink and after consuming the same she was intoxicated and accused teased her, moved his hands on her breast and earlier made physical relations with her on the assurance of marriage, I am of the considered opinion that prosecution has brought prima facie sufficient material on record against the accused for charge under Sections 354/328/376 IPC. Let charge be framed accordingly.”

14. Dissatisfied with the action of the trial Court in framing charges against him, the appellant-accused filed Criminal Revision Petition no. 08 of 2009, whereby he assailed the order dated 1.12.2008 passed by the Additional Sessions Judge, New Delhi. The Delhi High Court dismissed the revision petition on 16.1.2009, by interalia observing as under:-
“12. Truthfulness or falsity of the allegations, essentially pertains to the realm of evidence and the same cannot be pre-judged at this initial stage. I do not find any illegality or infirmity in the impugned order. Consequently, this Revision Petition is dismissed in limine while making it clear that anything herein shall not be construed as an opinion on merits at trial.”

15. Despite notice having been issued to the complainant/prosecuterix by this Court in the present case, she failed to enter personal appearance (or be represented through counsel). To procure her presence, bailable – warrants were issued in furtherance of this Court’s order dated 12.5.2010 and again on 16.10.2012. Priya, the complainant/prosecuterix entered personal appearance on 8.11.2012. During the course of hearing, consequent upon clarifications sought from her in respect of her marital status (at the time of the alleged occurrences with the appellant-accused), she informed this Court, that even though she was married earlier, she had divorced her previous husband before the dates of occurrence. To verify the factual position pertaining to her marital status as on the dates of occurrence(s), she was asked to produce the judgment and decree of divorce, from her previous husband. She accordingly produced a certified copy of the judgment and decree of the Court of the Civil Judge (Senior Division), Kanpur (Rural) dated 23.9.2008. A photocopy thereof duly attested by Priya, the complainant/prosecuterix, and her counsel, were taken on record. A perusal of the same reveals, that the complainant/prosecuterix was married to Lalji Porwal on 14.6.2003. She was divorced from her said husband by mutual consent under Section 13B of the Hindu Marriage Act, 1955, on 23.9.2008. Priya, the complainant/prosecuterix also affirmed, that she had remarried thereafter. She also produced before us a “certificate of marriage” dated 30.9.2008. A photocopy thereof duly attested by Priya and her counsel, was also taken on record. A perusal of the same reveals, that Priya (date of birth, 17.6.1986), daughter of Anup Kumar was married to Manoj (date of birth, 8.12.1983), son of Ram Kumar, on 30.9.2008.

16. The factual position narrated above would enable us to draw some positive inferences on the assertion made by the complainant/prosecuterix – against the appellant-accused (in the supplementary statement dated 21.2.2007). It is relevant to notice, that she had alleged, that she was induced into a physical relationship by Prashant Bharti, on the assurance that he would marry her. Obviously, an inducement for marriage is understandable if the same is made to an unmarried person. The judgment and decree dated 23.9.2008 reveals, that the complainant/prosecuterix was married to Lalji Porwal on 14.6.2003. It also reveals, that the aforesaid marriage subsisted till 23.9.2008, when the two divorced one another by mutual consent under Section 13B of the Hindu Marriage Act. In her supplementary statement dated 21.2.2007, the complainant/prosecuterix accused Prashant Bhati of having had physical relations with her on 23.12.2006, 25.12.2006 and 1.1.2007 at his residence, on the basis of a false promise to marry her. It is apparent from irrefutable evidence, that during the dates under reference and for a period of more than one year and eight months thereafter, she had remained married to Lalji Porwal. In such a fact situation, the assertion made by the complainant/prosecuterix, that the appellant-accused had physical relations with her, on the assurance that he would marry her, is per se false and as such, unacceptable. She, more than anybody else, was clearly aware of the fact that she had a subsisting valid marriage with Lalji Porwal. Accordingly, there was no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage. If the judgment and decree dated 23.9.2008 produced before us by the complainant/prosecuterix herself is taken into consideration alongwith the factual position depicted in the supplementary statement dated 21.2.2007, – it would clearly emerge, that the complainant/prosecuterix was in a relationship of adultery on 23.12.2006, 25.12.2006 and 1.1.2007 with the appellant-accused, while she was validly married to her previous husband Lalji Porwal. In the aforesaid view of the matter, we are satisfied that the assertion made by the complainant/prosecuterix, that she was induced to a physical relationship by Prashant Bharti, the appellant-accused, on the basis of a promise to marry her, stands irrefutably falsified.

17. Would it be possible for the prosecution to establish a sexual relationship between Priya, the complainant/prosecuterix and Prashant Bharti, the appellant-accused, is the next question which we shall attempt to answer. Insofar as the instant aspect of the matter is concerned, medical evidence discussed above reveals, that the complaint made by the complainant/prosecuterix alleging a sexual relationship with her by Prashant Bharti, the appellant-accused, was made more than one month after the alleged occurrences. It was, therefore, that during the course of her medical examination at the AIIMS, a vaginal smear was not taken. Her clothes were also not sent for forensic examination by the AIIMS, because she had allegedly changed the clothes which she had worn at the time of occurrence. In the absence of any such scientific evidence, the proof of sexual intercourse between the complainant/prosecuterix and the appellant- accused would be based on an assertion made by the complainant/prosecuterix. And an unequivocal denial thereof, by the appellant-accused. One’s word against the other. Based on the falsity of the statement made by the complainant/prosecuterix noticed above (and other such like falsities, to be narrated hereafter), it is unlikely, that a – factual assertion made by the complainant/prosecuterix, would be acceptable over that of the appellant-accused. For the sake of argument, even if it is assumed, that Prashant Bharti, the appellant-accused and Priya, the complainant/prosecuterix, actually had a physical relationship, as alleged, the same would necessarily have to be consensual, since it is the case of the complainant/prosecuterix herself, that the said physical relationship was with her consent consequent upon the assurance of marriage. But then, the discussion above, clearly negates such an assurance. A consensual relationship without any assurance, obviously will not substantiate the offence under Section 376 of the Indian Penal Code, alleged against Prashant Bharti.

18. Insofar as the assertion made by the complainant/prosecuterix, in her first complaint dated 16.2.2007 is concerned, it is apparent, that on the basis thereof, first information report no. 47 of 2007 was registered at Police Station Lodhi Colony, New Delhi. In her aforesaid complaint, Priya, the complainant/prosecuterix had alleged, that the appellant-accused had called her on her phone at 8.45 pm and asked her to meet him at Lodhi Colony, New Delhi. When she reached there, he drove her around in his car.

He also offered her a cold drink (Pepsi) containing a poisonous/intoxicating substance. Having consumed the cold drink, she is stated to have felt inebriated, whereupon, he took advantage of her and started misbehaving with her, and also touched her breasts. Insofar as the instant aspect of the matter is concerned, the presence of the complainant/prosecuterix, as well as the appellant-accused, at the alleged place of occurrence (Lodhi Colony, New Delhi), on the night of – 15.2.2007 after 8.45 pm, has been established to be false on the basis of mobile phone call details of the parties concerned. Details in this respect have been summarized in paragraph 8 above. The same are not being repeated for reasons of brevity. The proof of the aforesaid factual matter must be considered to be conclusive for all intents and purposes, specially, in view of the observations made by this Court in Gajraj Vs. State (NCT) of Delhi [(2011) 10 SCC 675], wherein it was held as under:-

“19. In the aforesaid sense of the matter, the discrepancy in the statement of Minakshi PW23, pointed out by the learned counsel for the accused-appellant, as also, the reasoning rendered by the High Court in the impugned judgment becomes insignificant. We are satisfied, that the process by which the accused-appellant came to be identified during the course of investigation, was legitimate and unassailable. The IEMI number of the handset, on which the accused-appellant was making calls by using a mobile phone (sim) registered in his name, being evidence of a conclusive nature, cannot be overlooked on the basis of such like minor discrepancies . In fact even a serious discrepancy in oral evidence, would have had to yield to the aforesaid authentic digital evidence which is a byproduct of machine operated electronic record having no manual interference. For the reasons recorded hereinabove, we find no merit in the first contention advanced at the hands of the learned counsel for the accused-appellant.” The aforesaid factual conclusion, that the two concerned parties were not present at Lodhi Colony, New Delhi after 8.45 pm on 15.2.2007, as has been established on the basis of the investigation carried out by the police, cannot be altered at the culmination of the trial, since the basis of the aforesaid determination is scientific evidence. Neither has the said material been contested by the complainant/prosecutrix. Once it is concluded, that the complainant/prosecuterix and the appellant-accused were at different places, far away from one another, and certainly not in Lodhi Colony, New Delhi on the night of 15.2.2007, it is obvious that the allegation made by Priya, the complainant/prosecuterix against Prashant Bharti, the appellant-accused of having outraged her modesty, was false. What stands established now, as has been discussed above, will have to be reaffirmed on the basis of the same evidence at the culmination of the trial. Such being the fact situation, we have no other alternative but to conclude, that the allegations levelled by the complainant/prosecuterix, which culminated in the registration of a first information report at Police Station Lodhi Colony, New Delhi on 16.2.2007, as well as her supplementary statement, would never lead to his conviction.

19. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the Cr.P.C.”) has been dealt with by this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor (Criminal Appeal No…… of 2013, arising out of SLP (Crl.) no.4883 of 2008, decided on 23.1.2013) wherein this Court inter alia held as under:

22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section -482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-

(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.”

20. The details in respect of each aspect of the matter, arising out of the complaints made by Priya on 16.2.2007 and 21.2.2007 have been examined in extensive detail in the foregoing paragraphs. We shall now determine whether the steps noticed by this Court in the judgment extracted hereinabove can be stated to have been satisfied. In so far as the instant aspect of the matter is concerned, the factual details referred to in the foregoing paragraphs are being summarized hereafter.

Firstly, the appellant-accused was in Sector 37, Noida in the State of Uttar Pradesh on 15.2.2007. He was at Noida before 7.55 pm. He, thereafter, remained at different places within Noida and then at Shakarpur, Ghaziabad, Patparganj, Jorbagh etc. From 9.15 pm to 11.30 pm on 15.2.2007, he remained present at a marriage anniversary function celebrated at Rangoli Lawns at Ghaziabad, Uttar Pradesh. An affidavit to the aforesaid effect filed by the appellant- accused was found to be correct by the investigating officer on the basis of his mobile phone call details. The accused was therefore not at the place of occurrence, as alleged in the complaint dated 16.2.2007. Secondly, verification of the mobile phone call details of the complainant/prosecuterix Priya revealed, that on 15.2.2007, no calls were made by the appellant-accused to the complainant/prosecuterix, and that, it was the complainant/prosecuterix who had made calls to him. Thirdly, the complainant/prosecuterix, on and around the time referred to in the – complaint dated 16.2.2007, was at different places of New Delhi i.e., in Defence Colony, Greater Kailash, Andrews Ganj and finally at Tughlakabad Extension, as per the verification of the investigating officer on the basis of her mobile phone call details. The complainant was also not at the place of occurrence, as she herself alleged in the complaint dated 16.2.2007. Fourthly, at the time when the complainant/prosecuterix alleged, that the appellant-accused had misbehaved with her and had outraged her modesty on 15.2.2007 (as per her complaint dated 16.2.2007), she was actually in conversation with her friends (as per the verification made by the investigating officer on the basis of her mobile phone call details). Fifthly, even though the complainant/prosecuterix had merely alleged in her complaint dated 16.2.2007, that the accused had outraged her modesty by touching her breasts, she had subsequently through a supplementary statement (on 21.2.2007), levelled allegations against the accused for offence of rape. Sixthly, even though the complainant/prosecuterix was married to one Manoj Kumar Soni, s/o Seeta Ram Soni (as indicated in an affidavit appended to the Delhi police format for information of tenants and duly verified by the investigating officer, wherein she had described herself as married), in the complaint made to the police (on 16.2.2007 and 21.2.2007), she had suggested that she was unmarried. Seventhly, as per the judgment and decree of the Civil Judge (Senior Division), Kanpur (Rural) dated 23.9.2008, the complainant was married to Lalji Porva on 14.6.2003. The aforesaid marriage subsisted till 23.9.2008. The allegations made by the complainant dated 16.2.2007 and 21.2.2007 pertain to occurrences of 23.12.2006, 25.12.2006, 1.1.2007 and -15.2.2007, i.e., positively during the subsistence of her marriage with Lalji Porwal. Thereafter, the complainant Priya married another man Manoj on 30.9.2008. This is evidenced by a “certificate of marriage” dated 30.9.2008. In view of the aforesaid, it is apparent that the complainant could not have been induced into a physical relationship, based on an assurance of marriage. Eighthly, the physical relationship between the complainant and the accused was admittedly consensual. In her complaints Priya had however asserted, that her consent was based on a false assurance of marriage by the accused. Since the aspect of assurance stands falsified, the acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC. Especially because the complainant was a major on the date of occurrences, which fact emerges from the “certificate of marriage” dated 30.9.2008, indicating her date of birth as 17.7.1986. Ninthly, as per the medical report recorded by the AIIMS dated 16.2.2007, the examination of the complainant did not evidence her having been poisoned. The instant allegation made by the complainant cannot now be established because even in the medical report dated 16.2.2007 it was observed that blood samples could not be sent for examination because of the intervening delay. For the same reason even the allegations levelled by the accused of having been administered some intoxicant in a cold drink (Pepsi) cannot now be established by cogent evidence. Tenthly, The factual position indicated in the charge-sheet dated 28.6.2007, that despite best efforts made by the investigating officer, the police could not recover the container of the cold drink (Pepsi) or the glass from which the – complainant had consumed the same. The allegations made by the complainant could not be verified even by the police from any direct or scientific evidence, is apparent from a perusal of the charge-sheet dated 28.6.2007. Eleventhly, as per the medical report recorded by the AIIMS dated 21.2.2007 the assertions made by the complainant that the accused had physical relations with her on 23.12.2006, 25.12.2006 and 1.1.2007, cannot likewise be verified as opined in the medical report, on account of delay between the dates of occurrences and her eventual medical examination on 21.2.2007. It was for this reason, that neither the vaginal smear was taken, nor her clothes were sent for forensic examination.

21. Most importantly, as against the aforesaid allegations, no pleadings whatsoever have been filed by the complainant. Even during the course of hearing, the material relied upon by the accused was not refuted. As a matter of fact, the complainant/prosecutrix had herself approached the High Court, with the prayer that the first information lodged by her, be quashed. It would therefore be legitimate to conclude, in the facts and circumstances of this case, that the material relied upon by the accused has not been refuted by the complainant/prosecutrix. Even in the charge sheet dated 28.6.2007, (extracted above) the investigating officer has acknowledged, that he could not find any proof to substantiate the charges. The charge-sheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 of the Cr.P.C.

22. Based on the holistic consideration of the facts and circumstances summarized in the foregoing two paragraphs; we are satisfied, that all the steps delineated by this Court in Rajiv Thapar’s case (supra) stand satisfied. All the steps can only be answered in the affirmative. We therefore have no hesitation whatsoever in concluding, that judicial conscience of the High Court ought to have persuaded it, on the basis of the material available before it, while passing the impugned order, to quash the criminal proceedings initiated against the accused-appellant, in exercise of the inherent powers vested with it under Section 482 of the Cr.P.C. Accordingly, based on the conclusions drawn hereinabove, we are satisfied, that the first information report registered under Sections 328, 354 and 376 of the Indian Penal Code against the appellant-accused, and the consequential chargesheet dated 28.6.2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1.12.2008, deserves to be quashed. The same are accordingly quashed.

Disposed of in the aforesaid terms.

 

J. (D.K. Jain)

 J. (Jagdish Singh Khehar)

New Delhi;
January 23, 2013.